Weekly Notes: legal news from ICLR – 15 May 2015
Posted on 15th May 2015 in Weekly Notes
This week’s conglomeration of legalities includes a sheaf of Bills, some more slicing and dicing of Legal Aid, and a call to arms from the CBA.
Passive tolerance under threat
One extremism deserves another, so religious extremism (which can lead to terrorism) is to be countered by a sort of digital extremism, from which “if you have done nothing wrong, you have nothing to fear”. Although some people seem to think you do, actually, because it’s unnecessary, disproportionate, and likely to lead to a general trampling on rights of privacy. Moreover, it is questionable whether such a move really does “put British values at the heart of” the new approach to tackling extremism.
A government press release announced that at the first meeting of the National Security Council (NSC) on 13 May, plans would be discussed for a new Counter-Extremism Bill. Assuming he stuck to the script, the Prime Minister, David Cameron, told the meeting that
For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone. It’s often meant we have stood neutral between different values. And that’s helped foster a narrative of extremism and grievance.
This government will conclusively turn the page on this failed approach. As the party of one nation, we will govern as one nation, and bring our country together. That means actively promoting certain values.
Freedom of speech. Freedom of worship. Democracy. The rule of law. Equal rights regardless of race, gender or sexuality.
One objection to this might be that if freedom of speech, for example, is a core British value, why is it being compromised by the sort of intense surveillance designed to make people self-censor their speech and think twice about assembling to discuss or protest against anything – in other words, it will have a chilling effect. The explicit target of Cameron’s words, and those scripted for the Home Secretary, Theresa May, was the “twisted narrative of” “poisonous Islamist” extremism. But the whole point about powers, once granted, is that they can be used for all sorts of other things. Like the “twisted narrative” (you may think) of animal rights extremists, or those who oppose the sale of arms, or UK’s involvement in foreign wars, or who tiresomely object to infringements of their rights to freedom of speech and assembly, and so forth. The words “wedge”, “thin” and “end” come to mind.
What all this means is that the Queen’s Speech, whose contents we guessed at in last week’s roundup, will now include legislation bringing in:
- Banning Orders for extremist organisations who seek to undermine democracy or use hate speech in public places, but fall short of proscription
- new Extremism Disruption Orders to restrict people who seek to radicalise young people
- powers to close premises where extremists seek to influence others
- strengthening the powers of the Charity Commission to root out charities who misappropriate funds towards extremism and terrorism
- further immigration restrictions on extremists
- a strengthened role for Ofcom to take action against channels which broadcast extremist content
The stuff about Britain’s woefully passive tolerance got a lot of tweetage from the commentelligentsia, as you’d expect, because it sounds like a good thing being characterised as a bad thing. But many of those who feel “political correctness” has “gone made” and, in consequence, self-censorship, biting your tongue, or whatever, has permitted a festering of intolerance in our midst, or tolerance of intolerance, will be, if not pleased, at any rate quietly satisfied that “something is being done” about it. These are the silent majority whom the pollsters overlooked.
Look out, law abiding folk: UK’s Counter-Extremism Bill slithers into view – Might as well just abolish ‘innocent until proven guilty‘ was the somewhat shrill and perhaps tendentious headline of an article in The Register pointing out the alarming illiberal effects that might flow from the new hardline policy, and questioning the need for them.
It also asked OfCom and the Charity Commission to see whether their current powers to combat extremism were adequate, receiving responses suggesting that they were, and were robustly being utilised.
One of the few remaining Liberal Democrat MPs, Tom Brake, was quoted responding to the announcement by suggesting that the best defence against the abuse of free speech was the use of free speech,
“exposing extremists and bigots for what they are, not making heroes of them by driving them underground, where they will continue to thrive in the darker corners of the internet”.
Fans of coalition government will miss the tempering of extremism that the Liberal Democrat presence in the corridors of power once brought. They might have blocked any legislative extremism, as they did with the now-resuscitated Communications Data Bill (see last week’s roundup). But it would be a mistake to assume that it was only the Lib Dems who opposed extreme legislation in response to extremism. According to the Guardian (It wasn’t just Lib Dems who opposed Theresa May’s counter-extremism plans), several Tory cabinet ministers, such as Nicky Morgan, Theresa Villiers, Greg Clark and Sajid Javid are said to have opposed earlier proposals, before the election, as well as new justice minister Dominic Raab, who is quoted as saying that “eroding basic principles of freedom that won’t make us safer” and that the proposed extremism disruption orders could be abused to slap down “monarchists, communists and even Christians objecting to gay marriage”’.
On the subject of Dominic Raab, David Allen Green in his Financial Times blog, suggests that his appointment to the Justice ministry is “fascinating” and points out that he belongs to a long tradition of rights-defending conservatism, or as he puts it “civil libertarianism”.
His 2009 book, The Assault on Liberty, is a breathless and detailed attack on Labour’s record on misusing state power. It is perhaps one of the best books on civil liberties written by a UK politician.
If his appointment is anything to do with the recasting of the Human Rights Act as a British Bill of Rights, then:
The political debate in the UK about civil liberties, and about how the law should best protect the rights of citizens, has suddenly become a lot more exciting.
Whither the revolution?
The fate of criminal legal aid still hangs in the balance, as the cuts and reforms which the previous Justice Secretary, Chris Grayling, failed fully to implement by the end of the last Parliament, will now have to be dealt with by his successor, Michael Gove. On the critical path, the two major changes on the horizon were the Duty Provider Scheme (DPS), also known as the two-tier scheme (which involves mass consolidation of the duty market, reducing the number of firms providing duty solicitor services from around 1600 to 527), and a second fee cut of 8.75% for solicitors.
The proposal are explained in more detail in an excellent piece by Tom Smith, on The Justice Gap, Is it ‘revolution time’? Where next for defence lawyers
He says there is now potential for a clean slate. Whereas the relationship between Grayling and the legal professions had soured and meaningful consultation become practically non-existent, in contrast, Gove comes to the role fresh. However, the opportunity for a fresh start may be hampered by the fact that he, too, is a non-lawyer and brings, from his previous post at Education, a reputation for ignoring the objections of relevant professionals to his reforms. The chance of a major re-think seems slender.
Meanwhile, at a rally held before the election, the former Court of Appeal judge, Sir Anthony Hooper had declared that, if the Tories got in, it would be “revolution time”. That was because, in the estimation of those at the rally, the cuts to legal aid would only continue and worsen the critical state in which the administration of justice now found itself.
For a note on the CLSA and LCCSA Rally about Dual Contracts (which I think was on 23 April, shortly before the election) see A Brief Note for Briefs by Joseph Markus on the A View from the North blog. See also: Gazette
Will the professions revolt, or will they try, initially at least, to work with the new regime?
The Criminal Bar Association’s chairman, Tony Cross QC, in a statement on 5 May said:
The leadership of the CBA believes that there is a real risk that the The Duty Provider Scheme (“DPS”), also known as the Two Tier Scheme, will destroy the quality of legal representation within the Criminal Justice System. The most able and committed young lawyers will have no future, and the independent bar will collapse.
He asks (and the members must vote on):
Would you support action, ‘No returns’ and ‘Days of Action’ if the new government decides to proceed with the Duty Provider Scheme, reducing the number of solicitor providers by at least two thirds?
Of course we hope you vote immediately, but for those who wish to think these things over, the closing deadline is 5.00pm Tuesday 19 May 2015.
The incoming Tory government’s long-announced plan to “scrap” the Human Rights Act 1998 and replaced it with a British Bill of Rights has been the subject of a good deal more discussion over the last week, much of it devoted to the sheer difficulty of unravelling the links and dependencies between the Act and other constitutional legislation, such as that relating to the devolved government of Scotland and Wales, and the Good Friday Agreement in Northern Ireland. Others concentrated on the wrongness of removing or curtailing the existing rights, and the error of the government’s view of how the UK courts interpret and apply (but do not slavishly follow) decisions of the European Court of Human Rights in Strasbourg.
All of this means that to the list of links in the last edition of Weekly Notes (8 May 2015) can be added the following (some predating the election):
- Steve Peers, on EU Law Analysis blog: Is repealing the Human Rights Act compatible with EU law?
- Mark Elliott, Public Law for Everyone blog, Replacing the human rights act: the House of Lords, the Parliament Acts and the Salisbury convention
- David Allen Green, in the FT: Why repealing the Human Rights Act is not going to be easy
- Social Science Research Network, The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights
- Hugh Tomlinson QC, on Inforrm’s Blog: Will the tort of misuse of private information disappear if the Human Rights Act is repealed? (Looks generally at whether developing law of privacy will survive the scrapping of the HRA. He thinks it will, because it is part of the developing common law and not dependent on the statute or Convention which inspired it.)
- Joshua Rozenberg, in the Guardian: Why human rights reform could trip up Michael Gove
- The Independent: Cameron faces Tory backbench rebellion over plans to scrap the Human Rights Act (claims a former aide to the new Justice Secretary Michael Gove warning that they have less than a 5 per cent chance of being implemented)
- Philippe Sands and Helena Kennedy, in London Review of Books (January 2013): In Defence of Rights (reporting on their involvement in the Commission on a Bill of Rights)
- The Economist: There may be trouble ahead. (subtitled Getting rid of the Human Rights Act will be tough—and almost pointless)
- Keir Starmer, in the Guardian: The arguments against the Human Rights Act are coming. They will be false
- The Guardian, Scotland ‘will not consent’ to Tory plans to scrap Human Rights Act
Dates and Deadlines
A play for today
The Invisible, a play about the impact of legal aid cuts, will be premiered at the Bush Theatre, London in July. Written by Rebecca Lenkiewicz, whose film Ida won an Oscar for best foreign language film and Best Film at the London Film Festival this year, the play draws on interviews to tell the stories of ordinary people hit by the cuts in funding for legal aid, and being forced to represent themselves, writes Jon Robins in Legal Voice.
The production is being sponsored by the Law Society, whose president, Andrew Caplan commented:
‘The fundamental concept of the rule of law is nothing more than an ideal if people cannot obtain access to justice.’
Law Society Excellence Awards 2015
Nominations are now open for the annual awards which will be announced in October. This is a chance to acknowledge the exceptional work of individuals, teams and firms. The categories include a new one for “Excellence in Technology”, as well as usual ones like Excellent in Pro Bono, Excellence in International Legal Services, Excellence in Diversity & Inclusion and Excellence in Learning & Development. Altogether there are nine categories. The deadline for nominations is 5 June. You can use an online form.
Criminal Bar Association – support for direct action vote
Members must vote whether to support direct action, including no-returns and further days of action, to protect the future of criminal legal aid, by 5.00pm Tuesday 19 May 2015.
For more details: see Chairman’s message dated 5 May (also referred to above, under Legal Aid).
Law (and injustice) around the world
Proposed law may impinge on right to fair trial
The somewhat cumbersomely entitled Law Enforcement Legislation Amendment (Powsers) Bill 2015 would, if passed, enable examiners from the Australian Crime Commission (ACC) to conduct interviews with persons after they had been charged with a criminal offence, and ask those persons questions relating to the subject matter of the charge, according to Melbourne law firm Holding Redlich.
The proposed measures are said to be justified as necessary to ensure the ACC has ‘appropriate powers to understand, disrupt and prevent both serious and organised criminal activity’. However, while self-incriminatory material thus obtained should not be admissible against examinees, and should not be used for the sole purpose of strenghening the prosecution case, it is suggested that these safeguards would not prevent it being used to investigate the person’s activity and lead to additional evidence that could be used in any prosectuion against them.
High Court confirms adword use of another’s mark
Applying the rulings of the ECJ in Google France SARL v Louis Vuitton Malletier SA (Joined Cases C-236/08 to C-238/08)  Bus LR 1 and Interflora Inc v Marks and Spencer plc (Case C-323/09);  Bus LR 1440, the High Court of Paris, in Interflora v Florajet (5 March 2015) confirmed that use of a third-party trademark as a Google AdWords keyword is lawful when there is no risk of consumer confusion about the origin of goods or services. Interflora, having brought the proceedings, were ordered to pay damages for abusive proceedings.
Full analysis of the case on DLA Piper Insights: “Say it with flowers”… But beware of keywords!
Boston bomber death sentence
Should the punishment fit the crime, or the criminal? Or should it, perhaps, fit the society that imposes it, and thereby reflect and enhance that society’s values? Perhaps this question is not asked often enough, or at all, by those who feel that sentencing should begin and end in the Biblical era (an eye for an eye, etc). These thoughts were prompted by the news (from the BBC) that Dzhokhar Tsarnaev, the surviving culprit in the fatal bombing of the 2013 Boston marathon, having been found guilty of murder, has been sentenced to death. As a state, Massachusetts ended the death penalty in 1984, but Tsarnaev was tried on federal charges, meaning he was eligible for execution.
Amnesty International issued a statement making clear that they condemned the bombings but deplored the imposition of a barbarous sentence following conviction:
The death penalty, however, is not justice. It will only compound the violence, and it will not deter others from committing similar crimes in the future. It is outrageous that the federal government imposes this cruel and inhuman punishment, particularly when the people of Massachusetts have abolished it in their state.
That’s it for now. (Check for updates in the next day or two.) Enjoy the week ahead, and don’t forget to vote in our 150 Years of Case Law on Trial poll, currently in its fourth period, from 1971 to 1995. Cases include Airedale, Gillick and Factortame.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.