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Archive for December, 2009

Westland affair Cabinet minutes and freedom of information

December 31, 2009 Leave a comment

It has just been reported that the Information Commissioner has ordered the disclosure of the minutes of the 1986 Cabinet meeting that took place immediately prior to Michael Heseltine’s resignation.

The question is whether the government will now release the minutes, appeal the decision or use the ministerial veto. Earlier this month, the veto was used to avoid releasing minutes of a Cabinet sub-committee. That decision was thought to show a pattern of using the veto to protect the convention of collective responsibility (with some suggesting that there is an unstated policy to keep Cabinet minutes secret).

This leaves the government with a difficult choice. If they use the veto, the government is open to criticism for upholding secrecy and undermining the spirit of the Freedom of Information Act. These arguments are particularly strong given the time that has elapsed since the meeting in 1986 and the public interest in knowing these issues.

On the other hand, if the minutes are released, then the government is open to criticism for using the veto strategically for political purposes  – in other words, that the veto is used to shield the current government from embarrassment, but is not used where it could embarrass previous governments. The criticism here is that a policy in relation to protecting Cabinet minutes is not being applied consistently.

Will be interesting to see which path is taken. Hopefully, it will force the government to rethink the use of the veto in relation to Cabinet meetings in future.

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Another first internet election?

December 29, 2009 Leave a comment

Once the Christmas break is over, the election campaign will step up. The Conservatives are expected to launch a poster campaign and Labour has promised to respond with an internet campaign. This raises the old question of what role the internet will play in the campaign.

I say it is an old question, as it was said 2001 would be the ‘first internet election’ and the same was thought of the election in 2005. Yet in both of those campaigns, the internet played a relatively minor role. There were some important uses, such as vote swapping sites. Yet I remember going to a seminar in 2005 where most of the participants were disappointed that the Internet had not transformed the way people campaign.

Will 2010 be any different? This is something already being debated (for example Demos/Prospect debate earlier this month) – and expectations will be high following the Obama campaign. The lessons of the US election are possibly of limited value for British politics. Much of the breakthrough in the States was in the use of the internet in fundraising, reportedly facilitating small donations. Whether this can be repeated here is not so clear. There are  reports of the internet being used in the same way in some constituencies. In the aftermath of the MPs’ expenses controversy and with the current financial situation, I’m not so sure a mass of people will want to hand over their money to politicians. It is, however, going to be a closer election, so maybe that will change things.

There are other differences that distinguish the American experience. The internet has been used to build networks of supporters. This may arise more naturally in the US, where campaigns are focused on candidates, than in the UK where supporters are already organised through political parties.

The bloggers in the US also responded to particular failures of the mainstream American media. While the media in Britain has its shortcomings, they are different to those in America. The online media here may need to remedy different failures of the press and broadcasters. The recent announcement of televised party leaders’ debates also suggests that one of the main events of the campaign will be focused on the traditional media.

If the internet is to play a prominent role in the coming election, it may be in less expected ways which fit with the specific features of British politics, rather than transposing methods from overseas.  It is unsurprising that the development of campaign techniques in the US has occurred quickly. This is not just because of the state of technology there – they also have a larger number of elections, which allows greater scope for experimentation. The candidate centred nature of American elections also means there are a larger number of separate campaigns each testing the various uses of the internet (as opposed to the more centralised party led campaigns). This provides a larger pool for campaigning techniques to be developed through processes of trial and error. While it may take more time to develop, a political role for the online media more tailored to the British system may emerge in the long-term, as the various methods are tried and tested.

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Who to include in the leaders’ debates

December 21, 2009 1 comment

The BBC reports that there will be a debate between the main party leaders before the general election. It will hopefully generate much interest in the campaign, although much of that attention will probably focus on performance rather than substance (Charlie Beckett talks about this as one of the dangers).

The debate will include the Liberal Democrat leader Nick Clegg – this is an important point. If a debate of this kind is to be a national event (and according to Mike Smithson it will ‘shape the entire election campaign’), then inclusion has a serious impact on a party’s chance to be heard and be seen as a serious contender. For this reason Clegg is seen, by some commentators, to emerge as a winner from the decision to hold the debate. But where does this leave all the other parties?

At the end of the BBC report, it reminds us:

In October the Scottish National Party said it would consider legal action if its leader – Scotland’s First Minister Alex Salmond – was not allowed to take part.

Going off past rulings, any political party would face an uphill struggle in making a legal challenge. The courts have traditionally been unwilling to challenge the judgment of broadcasters as to how they allocate their time to parties. The nearest equivalent is with Party Election Broadcasts (PEBs). The decision to allocate free access time to the parties has been contested in courts by smaller political parties on several occasions. For example, the SNP made such a challenge in the 1987 election, claiming they were entitled to the same number of broadcasts, in Scotland, as the three main parties. A decade later, the Referendum Party brought a claim arguing that it was entitled to more than just one PEB. Both of these claims were rejected.

The context of a PEB is also different from that of a leadership debate. In the latter, time is limited and an increase in the number of participants may detract from the number of issues covered or the depth of the debate. There is a need to be selective. Even after the Human Rights Act, a legal challenge is likely to succeed only if the decision by the broadcasters is arbitrary or unfairly discriminates.

A complicating factor is the success of SNP in the Scottish Parliament since those earlier cases, which bolsters their argument for inclusion. While this would be true of any debate for the Scottish Parliament, it seems less likely to succeed in the context of an election for Westminster.

These issues have arisen in other jurisdictions. For example, in Arkansas Educational Television Commission v Forbes (1998) a candidate in a US congressional election claimed that his exclusion from a televised candidate debate violated his First Amendment rights to freedom of expression. The Supreme Court rejected the claim on the grounds that the broadcaster’s decision was reasonable and did not discriminate against Forbes based on his political viewpoint. The American example is of limited help, as broadcasters there are not subject to the impartiality rules that apply in the UK. However, it does reflect a general unwillingness for courts to get caught in these tricky questions and a reluctance to require certain people to be included in such debates.

Twin pressures on protests

December 18, 2009 Leave a comment

For some time, newspapers have been writing about the use of s.44 of the Terrorism Act to stop people photographing public buildings. In a piece published in the Guardian earlier this week, Anna Minton, author of Ground Control, argued that restrictions on the way people use public spaces arise in other ways:

This monitoring and surveillance of innocent activities, which does not necessarily require anti-terror laws, is taking place all around Britain as a result of the growing private ownership and private control of cities.

The point is an important one, that the use of public spaces is subject to control through ownership as well as direct legal regulation.

Some common law or legislative powers allow the police to curtail people’s freedom to assemble or use public spaces. While there are understandable objections to the heavy-handed use of such powers, the laws granting those powers are at least known and subject to scrutiny. As a result, the exercise of those legal powers by the police can be challenged in court. The laws that give those powers to the police have also attracted attention and been widely criticised. The most obvious example being the 2005 legislation that required police authorisation before demonstrating in Parliament Square. Following the strong public reaction and criticism, legislation currently going through Parliament should repeal that law (it will be replaced with provisions granting police powers to regulate assemblies around Westminster). In the case of s.44 mentioned above, the police are at least trying to answer some of the concerns in the newspapers. While far from perfect, there are at least ways to challenge the legal controls.

The right to assemble is under a more subtle attack through the private management and the private ownership of public spaces. These changes may not give the landowner special powers, such as those available to the police, but allows all the rights associated with property ownership to regulate the land. The landowner can impose conditions on people entering the land (such as a ban on leafleting or political activities), rely on security guards to ask certain people to move on, or merely change the tone of an area in way that deters certain users. The more subtle powers associated with land ownership are not normally reviewable in court in the same way as police powers. Nor are the powers democratically accountable in the way that a local authority is.

The right to assemble and associate in public spaces is subject to the twin pressures of legal controls and changes in land management. Both raise important issues, but as Minton points out, the changes in land management have not been as high-profile or subject to the same level of debate as the legal controls.

What is not known is how many people have been affected by these changes. There are the occasional reports of protesters or leafleters being denied access to certain private areas and sometimes a legal complaint is made. However, it remains unknown how many people are deterred by a sign saying ‘no leaflets,’ or agree to leave a space when asked to move on by a security guard. The private control of certain public spaces may well have been brought about for good reasons – but it has potentially significant effects on civil liberties.

Protecting journalists’ sources

December 16, 2009 Leave a comment

The European Court of Human Rights ruled yesterday that the UK violated the right to freedom of expression by failing to protect the identity of journalists’ confidential sources.  The decision (Financial Times v UK) arises from a case called Interbrew v Financial Times, in which the courts ruled that newspapers must deliver to a company leaked documents, to help that company discover who was responsible for the leak.

The European Court’s decision is critical of the domestic courts for accepting some of  the company Interbrew’s arguments without sufficient evidence or investigation. While the law does provide some protection for journalists’ sources and the courts have made strong statements of principle, the track record on protecting those sources on the facts of each case is at best mixed. The Interbrew decision was, at the time, widely criticised in the media, and the Strasbourg Court’s decision suggests that domestic courts should be more reluctant to disclose material that could identify a source.

By way of background, in 2001 an unknown person leaked a confidential document to a number of newspapers, concerning Interbrew’s possible takeover of a competitor in the brewing industry. Several newspapers published stories based on this leaked document. Interbrew hired a security company to discover who was responsible for the leak, but they failed to identify the source. The company then sought a court order compelling the newspaper to disclose the documents, in the hope that this would reveal the source of the leak.

Courts are empowered to compel such disclosure in order to identify a wrongdoer (the wrong in this case being a breach of confidence). However, that does not end the enquiry and s.10 of the Contempt of Court Act 1981 provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

So before the court could order disclosure to Interbrew, it had to be satisfied that the order was necessary in the interests of justice. The court found this test to be fulfilled – the central reasons being: (1) that the purpose of the source in leaking the document had been to harm Interbrew and the interests of its investors; (2) having undertaken an internal investigation and hiring a security firm, there were no less restrictive alternative means that Interbrew could pursue to protect their interests.

The Court of Appeal’s ruling was greeted with hostility in the press. In particular, it was thought the potential chilling effect on anonymous sources could have a significant impact on financial journalism, which often relies heavily on inside sources. The newspapers refused deliver the documents, but – following the media pressure – the court order was not enforced by Interbrew. Despite this, the ruling was nevertheless challenged by the newspapers as violating Article 10 of the European Convention.

In relation to the first reason for the order, the European Court of Human Rights accepted that the purpose of the source could be relevant, but added that it is just one factor that can be taken into account and that ‘the conduct of the source can never be decisive’  in determining whether to order disclosure. On the facts of the case, the Court found ‘the legal proceedings against the applicants did not allow [the source’s] purpose to be ascertained with the necessary degree of certainty.’ Given the lack of certainty, the Court felt that significant weight should not be placed on the source’s purpose.

On the second point, the Strasbourg Court found the domestic courts had been too quick to conclude that Interbrew had done all that was possible to identify the source. In particular, the Strasbourg Court found:

full details of the inquiries made were not given in Interbrew’s evidence and the Court of Appeal’s conclusion that as much as could at that time be done to trace the source […] was based on inferences from the evidence before the court.

The strong protection of journalists’ sources is to be welcomed. The case does, however, highlight the evidential difficulties when the identity of a source is unknown. The suggestion from the European Court is that such uncertainties should be resolved in the favour of the media.

Non-doms and donations

December 15, 2009 1 comment

Non-dom donors to political parties continue to make news. Over the weekend, the Times  highlighted a row concerning Labour donor and a Deputy Speaker of the House of Lords Lord Paul’s appointment as a Privy Counsellor. The critics suggest that Lord Paul does not have the experience normally expected of a Privy Counsellor and then draw attention to the donations he has made to the Labour Party – see Iain Dale for a criticism along these lines.

At the same time, the controversy surrounding Lord Ashcroft’s tax status continues. The Conservatives have sought to limit the political damage by promising legislation to require MPs and peers to be full taxpayers. The strategy has had the effect of putting Ashcroft back into the headlines, but without pleasing the critics. Liberal Democrats have criticised the Conservatives for failing to support such a measure in the Lords earlier this year and have asked that party to support a legislative change prior to the election.

A Times editorial, while critical of the delaying tactic used by the Conservatives, gives David Cameron credit, saying that he ‘stood up to Lord Ashcroft, and confronted the issue of his tax status as no previous Conservative leader has been willing to do.’  Yet when the Guardian reported the proposal, it mentioned that

Conservative officials said Lord Ashcroft has been consulted about the proposed new law and has accepted the reform.

You might ask whether such consultation and acceptance is necessary, if the aim is to lay down the law to someone – isn’t his consent beside the point? However, you can see why it is politically prudent for the Conservatives to keep Ashcroft happy. Money still matters.

This coverage shows how both parties will seek to portray one another as in the pocket of wealthy donors, with the suggestion that special privileges are granted in return for payments. There are parallels between Lord Paul and Lord Ashcroft. Lord Paul is a non-dom, and while the position with Lord Ashcroft is not clear, it is sometimes assumed to be the same. Both donors are peers and party insiders with official roles – as opposed to external donors for whom giving money is the main contact with the party. Ashcroft’s money has been donated through the company Bearwood, and some of the money associated with Lord Paul has been given by the company Caparo.

Yet there are limits to the comparison. Lord Paul donated £10k to Labour in 2001, Caparo has given £14,250 to Labour since 2002 and £45k to Gordon Brown’s leadership campaign. By contrast, Bearwood Corporate Services has donated over £5 million to the Conservative Party since 2003. Finally, while Lord Paul is a non-dom for tax purposes, he is currently eligible to donate money to a political party (subject to a change in the law mentioned below). By contrast, some newspaper articles have asked whether Ashcroft is still on the electoral roll (which is another unclear matter).  If he is not, then he cannot make an individual donation (and only his UK-based companies can be a source of political funding).

On the last point, you may think the distinction is of less significance and that it is unacceptable for any non-dom to donate to a political party. This point was addressed in s.10 of the Political Parties and Elections of 2009, which amends the Political Parties, Elections and Referendums Act 2000, so that individuals can make donations over £7,500 only when ‘resident, ordinarily resident and domiciled in the United Kingdom in that year.’ However, the government has declined to bring the provision into force, so that, for the time being, donations from non-doms can still be a source of funds. This leaves open the potential for a number of non-doms to give money in the run-up to the election. In any event, once the provision is in force, it will not prohibit non-doms from channelling money to parties through UK-based companies.

Lurking in the background is the bigger question about large donations in general and whether a cap should be imposed on the amount that can be given to a political party. While this was a big issue some time ago with the Hayden Phillips Review, no agreement was reached between the major political parties on how donations from companies and trade unions should be treated under such a limit. The latest quarterly figures released by the Electoral Commission show the chances of any agreement in the near future to be remote, as both the major political parties depend on very different sources of funding.

The figures from the third quarter of 2009 show that while the Conservatives got £3.2 million from individual donors, Labour received £202,000. Companies gave £1.6 million to the Conservatives, but only £194,543 to Labour. However, Labour gained £2.4 million from trade unions. A cap on individual and company donations would, in the present conditions, impact on the Conservative Party, while an equivalent limit on trade union donations would quickly dry up funds for the Labour Party. This says nothing about the arguments in principle about whether a donation limit would be desirable, but it does show how the stakes are high and any legal control could affect the fortunes of one party more than another, in turn making an agreement less likely in practice.

Two wins for government secrecy

December 12, 2009 1 comment

Government secrecy has prevailed over expression and information rights twice in the last week, in a Supreme Court decision and in Jack Straw’s use of the ministerial veto over a Freedom of Information request.

In the Supreme Court decision – R (on the application of A) v B – a former member of the security services wanted to publish a memoir. When the security services refused to grant permission for the publication of certain parts of the book, the applicant sought to challenge that decision on the grounds that it violated his right to freedom of expression under Article 10 of the ECHR. The question for the court was whether such a claim could be heard in the ordinary courts or whether it had to be heard in the Investigatory Powers Tribunal (in the latter, hearings are secret and the applicant will not see all the evidence of the opposing case). The decision of the Supreme Court did not look at the merits of the freedom of expression arguments. Instead, much turned on the interpretation of a section of the Regulation of Investigatory Powers Act  2000. The effects of the decision are still important, as requiring claims to go through the Investigatory Powers Tribunal may affect the chances of such a freedom of expression case succeeding and also deter people in the same position as the applicant making a legal challenge in future.

The second government secrecy issue arose on Thursday. Jack Straw used the ministerial veto to stop the minutes of a Cabinet sub-committee on devolution (from 1997) being released under the Freedom of Information Act 2000. The decision has already caused controversy among campaigners, such as Maurice Frankel on the Freedom of Information Blog.  The decision came about after the Information Commissioner ordered the release of the sub-committee minutes in June, having found that the public interest was in favour of disclosure. The Commissioner found the minutes were no longer related to a ‘live’ issue (as devolution had already been enacted) and the  minutes did not provide any insight that would undermine the convention of collective responsibility. Despite this, the Lord Chancellor used his legal power to veto the Commissioner’s order. In doing so, Straw emphasised the need to protect collective responsibility and told the House of Commons:

As an integral part of our system of Government the maintenance of the convention is strongly in the public interest and must be given appropriate weight when deciding where the balance of the public interest lies.

Given that the minutes are over a decade old and the amount of information that is already out there about the differences between Cabinet members from that time, you might ask whether such a policy of protection is really necessary.

This is the second time that the veto has been used (the first was in relation to Cabinet minutes before the war in Iraq). The veto wasn’t the only option open to the government. The Information Commissioner’s decision could have been appealed to the Information Tribunal, which would have heard the arguments about the harms and benefits of disclosure. Rather than argue the merits of the case, the use of the veto allowed the government to assert what it regards to be in the public interest (without the risk of an adverse finding in the courts). Given some of the high-profile decisions that have gone against the government in the past, the willingness to use the veto possibility shows a change in the government’s strategy to protect certain types of information and avoid the risks of litigation.