This week’s round up of legal news from home and abroad includes loss of office for some, loss of privacy for others, and links to plenty of further reading matter.
Updated 20 July 2014.
DRIP enacted – PDQ!
Despite widespread concern among legal commentators on social media, the number of MPs actually present in the House of Commons on Tuesday to discuss the allegedly urgent enactment of the Data Retention and Investigatory Powers Bill – 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 – was alarmingly few. Images of the debating chamber showed a lot of empty green bench:
Nevertheless, the bill was duly passed into law. It has been described as a snooper’s charter and an unnecessary erosion of civil liberties. The fact that it has a “sunset clause” (it expires after 2 years) does not mean it will receive the scrutiny is requires before being simply continued, its extravagance having been normalised.
That said, there seems to be a mismatch in the commentatory angst, when it comes to the treatment of out of date and irrelevant private matters, between the idea of a “right to be forgotten” by internet search engines (bad, a form of censorship, naughty ECJ, naughty google) and a right to be forgotten by internet service providers / telecoms companies (good, because it’s the naughty Gov that seeks to abuse it). They seem to be two sides of the same coin. Maybe the Gov should just insist that google index the information, and suddenly it won’t seem to be quite so much of an invasion of our civil liberties, but rather a justifiable protection for posterity of matters of genuine public interest. Just saying.
Here is how the Prime Minister introduced the Bill.
Among the many commentators waxing prolific on the ills of the bill were:
- David Allen Green, on his FT blog, Drip, drip, drip – the emergency surveillance law erodes our civil liberties
- Graham Smith on his blog, Cyberleagle, Dissecting DRIP – the emergency Data Retention and Investigatory Powers Bill
- Richard Taylor on his blog, Data Retention and Investigatory Powers Bill (from where the image above was taken)
- Paul Bernal on his blog, DRIP: normalising the surveillance state
- Steve Peers, on the EU Law Analysis blog: Does the UK’s new data retention bill violate the EU Charter of Fundamental Rights?
- Ian Dunt, on Politics.co.uk: A snooper’s charter by the backdoor
- Infospectives blog: Privacy On An Emergency DRIP – What’s The Prognosis?
- Edward Snowden, NSA whistleblower in an interview in The Guardian: Edward Snowden condemns Britain’s emergency surveillance bill
- Net.wars: A Drip in Time
DRIP feed: newly added links
- Julia Powles, writing in the Guardian: UK’s Drip law: cynical, misleading and an affront to democracy
- UK Constitutional Law Association: Tom Hickman on the DRIP Bill: Plugging Gaps in Surveillance Laws or Authorising the Unlawful? and Tom Hickman: Further Concerns about the DRIP Bill
- The Conversation: The data retention bill means we have no privacy rights at all
- Ray Corrigan, writing on the B2fxxx blog: Another letter to my MP on DRIP
- Allan Travis, in the Guardian: UN commissioner criticises decision to fast-track emergency surveillance bill
Baroness bids farewell
Following the widespread criticism of the decision of her appointment to chair an inquiry into allegations of child abuse involving persons in positions of power under previous governments (see Weekly Notes 11 July 2014), Baroness Butler-Sloss, having initially said it was a decision for others, has herself withdrawn from the inquiry. (BBC report.)
Among those who had called for her resignation was Vera Baird QC, a former Solicitor General, on Monday: see The Times.
Following her departure, some commentators have aired the question whether judges or retired judges are in fact the best persons to lead public inquiries. See
- Prof Richard Moorhead, in a post his Lawyer Watch blog entitled Judges and Inquiries: do the public trust them? (Apparently over 80% of them do.)
- Mark Elliott, on Public Law for Everyone, in a post entitled Should judges lead public inquiries?
Cameron’s cabinet reshuffle: legal losers and winners
The legal community (on Twitter) was somewhat taken aback by the cabinet reshuffle this week, in the course of which David Cameron appears to have rid himself of all the lawyers. That Kenneth Clarke QC, MP, who was 74 this month, should have ceased ministerial office after serving on the front bench in one capacity or another since the 1980s may not be all that surprising (in fact he resigned), but for the Attorney General, Dominic Grieve QC, MP, and the Solicitor General, Oliver Heald MP, to have been ousted as well seemed ominous. Also sacked was Damian Green, junior justice minister responsible for policing, criminal justice and victims. There was speculation that Cameron was clearing out any last vestiges of support for European Union membership and the Human Rights Convention at the cabinet table.
As reported in the Gazette, the new Attorney General is Jeremy Wright, MP for Kenilworth and Southam, who became a junior minister in 2012, responsible for prisons and rehabilitation. The new Solicitor General is Robert Buckland, who is MP for South Swindon and a member of the justice select committee. Both have practised as criminal barristers. Green is replaced at the ministry by Mike Penning MP, a former soldier, firefighter and political journalist.
Though Ken Clarke was regarded as an insensitive reformer of the NHS when minister for health in the 1980s, he was probably Britain’s best post-war Chancellor of the Exchequer in John Major’s second government, and was a fairly progressive Lord Chancellor under David Cameron before being replaced by the much tougher (non lawyer) Chris Grayling (who remains in office, for the moment at least). That said, it was Clarke who commenced the process of cutting legal aid: see BBC report on his justice bill. Fora more general background and links: a Wiki view.
For an appreciation of Dominic Grieve’s achievements in office, see on Carl Gardner’s Head of Legal blog, Dominic Grieve as Attorney General, 2010-2014.
For more general comment on the reshuffle of legal pack: Legal Voice, Justice Watch.
Phone-hacking Trial: update
Whilst acknowledging that “a jury of her peers” had found Rebekah Brooks not guilty of all charges in the recently concluded 8-month trial concerning phone-hacking at the News of the World, it lists and analyses the specific actions which she admitted in the witness box having taken ,both as editor of The Sun and as chief executive of News International, to prevent the full extent of the phone-hacking conspiracy at the News of the World being exposed.
The report also discloses material emerging in the absence of the jury which could not have been reported during the trial. (Presumably nothing here that could prejudice any retrial of Coulson and Goodman following the original jury’s inability to arrive at a verdict on some charges.)
For the original trial verdict story: Weekly Notes – 27 June 2014.
Peter Jukes, who live tweeted the trial, writes a fascinating in-depth profile of Rebekah Brooks in the New Statesman: Rupert’s red top: the rise and fall of Rebekah Brooks
Facebook privacy fears
Tacking people’s fears about Facebook and other social media is one of the topics covered in the Information Commissioner’s Annual Report and Financial Statements 2013/14, released this week.
According to the report the ICO
handled 259,903 calls to our helpline and resolved 15,492 data protection complaints, a rise, in both cases, of over 10% on the previous financial year. We also decided on 5,296 freedom of information complaints, a 12% rise on last year’s figure, and received 161,720 reports from people concerned about spam texts and nuisance calls.
Launching the report on 15 July the commissioner, Christopher Graham, highlighted how the troubled launch of care.data, Facebook’s research and the so-called Google ‘right to be forgotten’ ruling show why there’s a greater need than ever to have an independent regulator with strong powers and sustainable funding.
Much of the work is quite low profile, however. For example:
We intervened when Staffordshire Police publicised details of drivers charged with drink driving on Twitter. Whilst releasing some details of people charged with criminal offences is acceptable, using a hashtag ‘#DrinkDrivers’ is potentially misleading as it implies guilt. The force quickly amended its approach.
Among the more substantial matters the ICO is investigating currently is the wholesale invasion of privacy involved in such things as Facebook manipulating the newsfeeds of almost 700,000 users then monitoring how the stories influenced their mood in subsequent posts, which has sparked a furious backlash, according to the Solicitors Journal.
But, writes John Naughton in the Guardian, We shouldn’t expect Facebook to behave ethically. His article provides a handy summary of the background to the story, and argues that the idea big corporations might behave “ethically” is absurd. It’s not in the nature of the beast. Rather, it is the law that needs to catch up:
The arguments about whether the experiment was unethical reveal the extent to which big data is changing our regulatory landscape. Many of the activities that large-scale data analytics now make possible are undoubtedly “legal” simply because our laws are so far behind the curve. Our data-protection regimes protect specific types of personal information, but data analytics enables corporations and governments to build up very revealing information “mosaics” about individuals by assembling large numbers of the digital traces that we all leave in cyberspace. And none of those traces has legal protection at the moment.
Law in the world
Al Jazeera jailed journalists update:
A large number of practising barristers of England and Wales have signed a joint letter to the Egyptian ambassador to London, his Excellency Ashraf El Kholy, expressing their dismay at the recent sentencing to seven years in prison of the Al Jazeera journalists Peter Greste, Mohammed Fahmy and Baher Mohamed on charges of “spreading false news” and “supporting the Muslim Brotherhood”. The letter drew attention to the apparent failure to respect the right to “a fair and public hearing by a competent, independent and impartial tribunal” under article 14 of the International Covenant on Civil and Political Rights, of which Egypt is a signatory, and to the disproportionate sentences imposed, and calling on the government to review the cases as a matter of urgency. Copy of letter: via @AdamWagner1
there has been further commentary following the decision of the Grand Chamber of the European Court of Human Rights earlier this month (SAS v France) that France’s law banning the wearing in public of full-face veils was legitimate, including:
- Can Yeginsu and Jessica Elliott, on the OUP blog, Veils and the choice of society
Eight social media activists in Iran have been sentenced to a total of 127 years in prison, after they criticised the country’s government on Facebook. An Iranian court found them guilty of using the pages to spread anti-government propaganda, attemp to undermine national security, and insult Iran’s leaders. Full story: The Independent.
Amnesty International has called for the conviction against a peaceful Russian activist, Mikhail Kosenko, to be overturned following his release from a closed psychiatric institution last week. He had been arrested after taking part in a protest in May 2012. “His only crime”, said Amnesty’s Moscow office direct, Sergei Nikitin, “was publicly expressing his beliefs”. The risk, if his conviction is not overturned, is that “he could be locked up again for any transgression, real or fabricated.”
Full story: Amnesty
This week’s slightly silly story
In Jiaxing, near Shanghai, a young man in his 20s has attempted to sell his soul on Taobao, China’s top online auction site. According to The Age, his offer attracted “bids from some 58 soul-searching buyers before the posting was pulled”. Perter Erisman, spokesman for Taobao’s parent company, Alibaba.com, said” Taobao wasn’t opposed to the idea of soul selling online, but wanted more proof that the seller could provide the goods.”
Commenting on Twitter, Prof Gary Slapper remarked “If you want to sell your soul, the best person to ask is a lawyer”, adding “The transaction requires apt proof”.
From the irrepressably legal humorist, Alex Williams in his Queen’s Counsel cartoon in The Times law pages:
That’s it folks. Have a great weekend. And if you want to comment on or share any of the stories in this blog, please use our Facebook or Twitter accounts (links at top of page).