Weekly Notes: legal news from ICLR – 16 January 2015

Posted on 16th Jan 2015 in Weekly Notes

This week’s selection of legal news from home and abroad includes much that is related to or brought into focus by the terrorist attacks in Paris last week, such as questions about freedom of expression, respect for religion and other rights, and the tension between privacy and electronic intelligence gathering.

 

Other recent articles of interest:

 

Human Rights: listing delay

Hoegh Osaka

Run aground, like the Tory’s Bill of Rights (image: Telegraph)

The Conservative plan to replace the Human Rights Act 1998 with a new-look Bill of Rights seems to have run aground almost as definitively (though perhaps not quite as deliberately) as the stricken Hoegh Osaka cargo ship in the Solent earlier this month. According to the Law Society Gazette:

“The bill, announced last October in the party’s paper Protecting Human Rights in the UK, had been due to appear before Christmas. However the Conservatives admitted last week that it was not yet ready for publication. ‘It has been pushed back a little for fine tuning,’ a party source told the Gazette. Publication will ‘definitely’ be before the May general election, the source added.

Whether it will in fact be refloated in time remains to be seen.

Meanwhile, one Tory backbencher was not slow to exploit L’Affaire Charlie Hebdo in support of a listing to starboard, declaring on his blog that the “Paris attacks show need to scrap Human Rights Act“. David Davies MP (not to be confused with the rather better known David Davis MP) was taken to task by Adam Wagner on the UK Human Rights Blog for having “no understanding of the Human Rights Act” and for providing a “spurious” example of a dangerous extremist being able to claim asylum under the Act, notwithstanding that there are provisions in the Refugee Convention (not mentioned by Davies) which would in fact preclude it. Wagner concludes:

MPs have a responsibility to be accurate when the promote the repeal of an important law. Mr Davies’ post is irresponsible, particularly in the charged climate following the Paris attacks. He should remove or amend it, with a clear message that he got it wrong.

Mr Davies has not done so. His post was also the subject of a response by Mark Elliott on Public Law for Everyone, who concluded:

Freedom of expression in general and freedom of the press in particular are values that were championed by the journalists and cartoonists at Charlie Hebdo, and they are values enshrined in Article 10 of the ECHR and, hence, in our own Human Rights Act. To suggest that the shocking events that took place in Paris this week establish a need to repeal that legislation discloses not only an astonishing degree of legal illiteracy but a fundamental failure to appreciate what it means to live in a liberal democracy.

Elsewhere, the virtues of the Human Rights Act were championed by the former DPP and current Labour parliamentary candidate Sir Keir Starmer QC in an article in Counsel Magazine (January 2015) entitled The Case for the Human Rights Act

And by way of a reminder that there are still some Tories who support the HRA, there was a profile of Dominic Grieve QC MP in the Gazette around the same time. In it, he derides the government paper (proposing the Bill of Rights) for being “deficient in reasoning” and says, in a more general comment about politics and the forthcoming election, that “Mainstream politicians have lost touch with the people they aspire to represent.”

 

Global law summit

Summit not quite right about Magna Carta commemoration

As the Gazette profile notes, Dominic Grieve is also involved in organising the Global Law Summit, scheduled for 25-25 February 2015,

which will bring more than 2,000 law, business, government and academic leaders from around the world to London to mark the 800th anniversary of the sealing of Magna Carta. Grieve has dubbed the summit ‘the Davos of where law meets business’.

No doubt he would say that. The summit has been the subject of a less than glowing reception elsewhere: in the Telegraph Peter Oborne in a piece entitled The hypocrites have jumped aboard the Magna Carta bandwagon said it was right to mark the 800th anniversary of the signing of Magna Carta but the way it is being done, as a promotional  jolly to boost UK law biz, was “sordid, disgusting and debased”, and the sponsors listed on the summit’s website included several whose connection to the promotion of human rights and the rule of law were puzzling, to say the least.

“The rank stench of moral hypocrisy will hang over the Queen Elizabeth Conference Centre,” he says, commenting adversely on some of the speakers as well (eg Boris Johnson, who last year proposed abandoning the presumption of innocence for certain classes of defendants – see Terror Makes Tyrants of Us All on this blog). In short, says Oborne,

ladyjbandw10

Summit funny about justice: the alternative view

Mr Cameron’s Government has launched something close to an out-and-out attack on the rule of law. The idea that either he or his ministers give a damn for the principles that underlie Magna Carta is preposterous.

Also critical is Legal Voice, which suggests an alternative event, Not the Global Law Summit, organised by the Justice Alliance, including Stand Up for Legal Aid – Justice Just got Funny! on 23 February at the Union Chapel. This will be a comedy evening with a lineup of comedians and satirists (hopefully responsible ones – see next story) on the subject of law and its absence.

The alternative summit is being organised to provide a more appropriate celebration of what Magna Carta stands for:

The Government is re-writing historical dates to make political capital out of a celebration of the rule of law. It is trumpeting our justice system while behind the scenes damaging the rule of law and causing irreparable harm to access to justice.

We are calling on all principled lawyers to boycott the Global Law Summit and attend Justice Alliance‘s alternative celebration of the Magna Carta, Not the Global Law Summit.

 

Freedom of expression: a qualified right?

Should rights, like alcohol, be “enjoyed responsibly”?

In the wake of the assassinations of the writers, cartoonists and editors of the French satirical magazine Charlie Hebdo, a lot of commentary, while accepting that no amount of offence to anyone’s religious sensibilities deserved an extra-judicial death sentence, nevertheless sought to question whether the right to freedom of expression was as absolute as everyone seemed to be saying. No one seemed in any doubt that the cartoons (especially) in Charlie Hebdo were crude and rude and likely to cause offence. But were they satire?

The controversial novelist Will Self, in an article for Vice entitled The Charlie Hebdo Attack and the Awkward Truths About Our Fetish for ‘Free Speech’ seemed to be questioning whether they were, when measured by his yardstick, a definition by HL Mencken of journalism, viz that is should “afflict the comfortable and comfort the afflicted”.

For my own part, I would regard that as a very inadequate definition of satire, which must include holding a mirror up to human vanity, hypocrisy and self-delusion, among other qualities, and gross exaggeration for comic or ironic effect of deliberately held ideologies (as opposed to unavoidable qualities such as race or physical appearance). But even if the cartoons weren’t satire on anyone’s definition, that hardly precludes them from the protection of freedom of expression. Nor does Will Self contend otherwise, he just wants to make us feel uncomfortable (perhaps in a Menckenian sense):

This is in no way to condone the shooting of Charb and the other journalists – an act that, as I pointed out initially, is evil, pure and simple, but our society makes a fetish of “the right to free speech” without ever questioning what sort of responsibilities are implied by this right.

Likewise, Max Fisher on Vox, in a piece entitled What everyone gets wrong about Charlie Hebdo and racismpointed out that many of the cartoons, even allowing for their ironic double meaning, could in fact be seen as not only racist but targeting and offending (as Will Self was saying) those least able to defend themselves, such as the North African immigrants in the poorer suburbs.

This echoed an article in the Financial Times, (The gunmen in Paris attacked more than a Muslim-baiting magazine), which Tony Barber had written on the day of the attacks, before anything was known about the perpetrators, and before the attack on the Jewish supermarket two days later. Barber acknowledged the atrocity of the attack on Charlie Hebdo, but then immediately questioned its good faith in selecting targets for its satire:

Charlie Hebdo is a bastion of the French tradition of hard-hitting satire. It has a long record of mocking, baiting and needling Muslims.

He goes on to say:

This is not in the slightest to condone the murderers, who must be caught and punished, or to suggest that freedom of expression should not extend to satirical portrayals of religion. It is merely to say that some common sense would be useful at publications such as Charlie Hebdo, and Denmark’s Jyllands-Posten, which purport to strike a blow for freedom when they provoke Muslims.

What these and other articles seemed to be saying was not that the massed crowds of supporters carrying “Je suis Charlie” placards were being hypocritical (unlike some of the politicians or envoys who turned out at the rally) but, rather, that it was perhaps unfortunate that the martyrs to the human right of freedom of expression were not quite as saintly or virtuous and their publication not quite the enlightened beacon of progressive values as might more comfortably have been the case.

But that seems gloriously to miss the point. Rights are there for everyone. The suggestion that some are more deserving of rights than others, or that only those exercising rights in a responsible manner deserve protection, is exactly the kind of human rights heresy that the Tories seem to be falling into with their Bill of Rights (see above).

As a corrective, Nick Cohen in the Spectator on that day attacked what he called

insidious articles, which condemn freedom of speech as a provocation and make weasel excuses for murder without having the guts to admit it.

In an article entitled Charlie Hebdo: the truths that ought to be self-evident but still aren’t, he also pointed out, inter alia,

It is not ‘Islamophobic’ to satirise radical Islamists and their beliefs – the main targets of radical Islamists include other Muslims as well as Christians, Jews, Yazidis and secularists.

He returned to the fray three days later with an article in the Guardian (Paris attacks: unless we overcome fear, self-censorship will spread) asserting that, in the UK at least, the right to freedom of expression was already subject to a de facto law of blasphemy:

We have a blasphemy law. No electorate has approved it. No parliament has passed it. No judge supervises its application and no jury determines guilt beyond reasonable doubt. There’s no right of appeal. And the penalty is death. It is enforced not by a police bound by codes of conduct, but by a fear that dare not speak its name; a cowardice so total it lacks the courage to admit it is afraid.

This is the phantom of self-censorship, the very “common sense” and “responsibility” urged by those he regards (see above) as weasel-worded appeasers. And he questions the powerlessness of what radical Islam represents, or indeed (in countries like Saudi Arabia – see below) the non-radical but established version. In short, by kow towing to thin-skinned oppressors we are making a rod, if not a Kalashnikov, for our own backs.

 

Snoopy rides again

Calls for more powers in wake of intelligence failure

snoopy as a spsy

Snoop doggy dogs ISC

Last year, in the wake of the murder of Lee Rigby by two extremists who had been on the intelligence radar as potentially dangerous extremists, the knee-jerk response of the  Intelligence and Security Committee (ISC), having identified a number of failures by the security services, was to blame the social medium Facebook for providing, in its moderately private channels of communication and self-advertisement, a “safe haven” (sic) for terrorists. (See Weekly Notes, 5 December 2014.)

This came after the speedy enactment (with barely any debate) of the Data Retention and Investigatory Powers Act (DRIP) which requires ISPs and telecoms companies to retain private communications metadata for up to 12 months and to permit law enforcement agencies to use the actual content in investigating crime and terrorism.

Now, the day after the slaugher of Charlie Hebdo staff, the head of MI5, Andrew Parker, called for new powers to fight extremism, according to the Guardian,

warning of a dangerous imbalance between increasing numbers of terrorist plots against the UK and a drop in the capabilities of intelligence services to snoop on communications.

This despite the fact that the French authorities already had all the powers they needed to keep track of the Kouachi brothers who carried out the attack on Charlie Hebdo, they just allowed them to drop off the radar, either by mistake or because they lacked resources to keep track of all those within their sights. The same would be true here, argued Henry Porter, in a later Guardian piece, Why MI5 does not need more surveillance powers after the Paris attacks

MI5 has recently been required to divert £123m of its £2bn budget to cybersecurity – so what may be needed is more money rather than further intrusive powers. It is obviously always easier for a government fighting a deficit to pass legislation on the latter, but this is not a sensible way to respond to an attack that was calculated to set people apart and undermine the values of liberty, tolerance and openness. In other words, we should not compromise the fundamentals of our democratic system by dishing out mass surveillance powers.

Paul Bernal in his blog pointed out that Paris damages the case for mass surveillance…

 France already has extensive surveillance powers. It already has ID cards. It already has more privacy invasions than we in the UK have – and we have a huge amount. That surveillance, those privacy invasions, didn’t stop the shooting in Paris. Why, therefore, would we believe that similar powers would work better in the UK?

In the Financial Times (Acts of terrorism and Terrorism Acts), David Allen Green points out the cyclical nature of such calls for action:

 whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book. …

And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.

He attributes this to a mixture of impotence of politicians and the ever-growing greed of the security services for the right to snoop and pry, regardless of whether it achieves anything in the way of justice or security.

 

Parish News

New chairman

The incoming Chairman of the Bar, Alistair MacDonald QC, set out his stall in a speech, reproduced in Counsel Magazine, on what he identified as the four main issues that would dominate the profession in 2015: “criminal legal aid, the crippling effect of LASPO, new business structures and keeping England and Wales the jurisdiction of choice”.

He made an important observation about the value of access to professionally trained advocates at a time when regulators seem content to allow untrained and unregulated competitors to enter the market in the mistaken belief it is providing customer choice in the age of austerity:

I believe that litigants who are currently paying McKenzie friends would prefer to employ the services of a fully insured and regulated, direct access trained, junior barrister who has carried out pupillage and has the benefit of operating from chambers, if they did but know that they had that option. The costs of doing so would be the same as, or only slightly greater.

Barristers’ new business models

From 5 January the Bar Standards Board will accept applications from barristers wishing to set up and own “entities” to provide “reserved legal activities” such as appearing in court as an advocate. The BSB will start authorising such BSB-regulated businesses from April.

In what is billed as a “new era for the Bar”, Barristers and other “advocacy focussed” lawyers will be able to form companies, partnerships or set up an LLP without needing to change regulator. The BSB is not yet proposing to authorise Alternative Business Structures (ABSs) – entities with non-lawyer owners and managers – but will in 2015 apply separately to the Legal Services Board to become a licensing authority of ABSs.

More details: BSB

Holiday plans

The Bar Council, like many at this time of year, appeared to be concentrating on holiday plans, announcing a mission to Brazil  from 14 to 20 March 2015. A delegation will visit Sao Paulo, Rio de Janeiro and Recife, with a view to raising the profile of the Bar within the Brazilian legal market and promoting the services barristers can offer Brazilian clients. Unfortunately, this is a bit too late to coincide with the Rio carnival (February 13 to February 18, 2015). But no doubt the bar delegation will take full advantage of the host nation’s warm hospitality.

International Bar Association

The International Bar Association (IBA) has announced David W Rivkin as its new President. The press release states:

Consistently ranked as one of the top international dispute resolution practitioners in the world, Mr Rivkin is a litigation partner at the New York and London offices of law firm Debevoise & Plimpton LLP. He is also Co-Chair of the firm’s International Dispute Resolution Group.

 

Law (and injustice) around the world

Egypt

Debauchery defendants acquitted

In a rare-ish piece of good news from Egypt, where the rule of law is severely threatened by the current military regime’s crackdown on dissent, 26 men who had been arrested for “debauchery” after a raid on a public bath house were eventually acquitted – but “only after they had endured public humiliation, weeks in jail and, in at least three cases, apparent sexual assault while in custody”, writes the LA Times.

The arrests followed a tip-off by a pro-government television reporter, who attended the raid with camera crew. Although homosexuality is not illegal in Egypt, gays are persecuted and the government appears to be clamping down on LGBT groups generally. They are not the only ones. A man who declared himself an atheist on Facebook was apparently imprisoned for 3 years in consequence, according to the same report.

 

India

Delhi rape reportings up a third

The number of rapes reported in Delhi has increased by nearly a third in the past year, according to the Guardian, highlighting the alarming levels of sexual violence against women in the Indian capital. But it perhaps also shows that women are less reluctant to come forward, given the publicity and international outcry in response to the prevalence of the crime in recent news reports, and demonstrations that have taken place in India. As the Guardian notes, two years ago,the death of a medical student who was gang-raped on a moving bus in the city triggered mass protests that led to policing and legal reforms. More recently, an Uber taxi driver has been charged with raping a client.

 

Indonesia

Aceh’s sharia law: raped and beaten; then formally whipped

According to the Sydney Morning Herald (from which the above headline was taken), a woman found to be alone in her house with a man not her husband was first gang-raped by a mob of indignant villagers before being more formally flogged for immorality. A couple of the men were later found and punished, but the rest are still free.

 

Kenya

Student jailed for insulting Kenyatta

The Daily Nation reports that a student at Moi University,  Alan Wadi Okengo alias Lieutenant Wadi, was sentenced in a Nairobi court to  two years in jail for posting on social media unprintable insults against President Uhuru Kenyatta. He was sentenced after pleading guilty to two charges of hate speech and demeaning authority of a public officer, contrary to Section 132 of the Penal Code.

In her ruling, the magistrate said , “the offence is serious and a deterrent penalty is called for to serve as a warning to others abusing the social media forums.”

 

Saudi Arabia

Lashings of support for human rights

The double standards demonstrated by the Saudi ambassador attending the rally in Paris in support of free speech, and by implication the rule of law and human rights enjoyed thereunder, was commented on by many at the time (eg New Statesman) , given that his own country’s legal system had sentenced a blogger, Raif Badawi, to ten years imprisonment and 1000 lashes for setting up a website to champion free speech in the Kingdom and publishing a blog, the Saudi Free Liberals Forum, in which he was occasionally critical of the theocratic way it is governed. It was shut down after his arrest in 2012. Last week he was given the first instalment of 50 lashes. This week, the same dose was postponed because his wounds from the first instalment had not yet healed. One supposes they do not want to kill him too soon – ie before he can enjoy the full severity of his punishment.  (See Guardian, Saudi blogger faces next 50 lashes as government ignores global protests.)

To demonstrate the United Kingdom’s support for international human rights, or perhaps its commitment to higher values of Realpolitik, or just plain money, the Ministry of Justice is pleased to do business with Saudi Arabia, reporting in its Mid-year Report to Parliament (p 6) that its subsidiary, Just Solutions International, had submitted a

 £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.”

David Hencke comments on this in his blog, Ministry of Justice: Flogging prison expertise to Saudi beheaders and floggers He asks, in response to the Justice Secretary Chris Grayling’s claim that doing such business helps reduce the deficit,

is there not an ethical matter whether the British taxpayer wants the deficit reduced by making profits from a regime that tortures,  publicly beheads ( some 59 in first nine months of last year) and flogs people? It could be said to amount to blood money.

See also: Human Rights Watch (via Huffington Post): The Price of Standing Up for Human Rights in Saudi Arabia

 

Singapore

Singapore International Commercial Court launched

According to Channel News Asia, the Singapore International Commercial Court (SICC) was launched on 5 January 2015 with the aim of the Republic becoming a centre for resolving commercial disputes. The report goes on:

At the opening of the legal year 2015 on Monday morning, Chief Justice Sundaresh Menon announced the appointment of 11 international judges to work alongside local judges for the SICC.

The international judges include the Honourable Sir Vivian Ramsey from the United Kingdom, a former judge of the High Court of England and Wales; the Honourable Ms Carolyn Berger, former Justice of the Supreme Court of Delaware, United States; Japan’s Professor Yasuhei Taniguchi, former Chairman and Member of the Appellate Body of the World Trade Organization; and the Honourable Justice Dominique T Hascher, Judge of the Supreme Judicial Court of France.

Tanzania

Police top bribery league

According to a report in The Citizen

The Police Force is the most corrupt public institution in Tanzania, according to the 2014 East African Bribery Index (EABI). The report released yesterday says that members of the Police Force received 25 per cent of all bribes given to employees of public institutions last year.

Second [somewhat alarmingly] is the Judiciary, whose workers pocketed 18 per cent, while agencies tasked with registration and issuance of licences are third on 10 per cent. Local government authorities and natural resources departments are joint fourth after their employees took five per cent of bribes.

Tanzania’s police force is the second most corrupt in East Africa.  Uganda tops this league of shame with Kenya and Burundi in third and fourth places, respectively.  Police in Rwanda are the least corrupt in the region, according to the report.

 

 

And Finally…

I leave you with one of the best images of the events in Paris last week, an almost painterly view, via Reuters.

Paris evenement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Don’t forget to sign up for weekly Case Law Updates. Click here for last week’s alert.

And, if you haven’t read them yet, our two-part review of last year’s news and trends: Annual Review 2014 (part 1) and (part 2).

 

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.