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Archive for May, 2010

Lord Lester’s Defamation Bill and Responsible Publication

May 27, 2010 Leave a comment

Lord Lester has introduced a Defamation Bill in the House of Lords. The Bill covers many features of defamation law, which will require careful consideration. I have just had a quick glance at the Bill and here are some initial comments on one aspect of it, a defence of ‘responsible publication’ of matters in the public interest.

Under the current law, there is a defence of ‘responsible journalism,’ (known as Reynolds privilege),. This applies where the public is on a matter in the public interest and the defendant can show he or she acted responsibly (even if the statement is untrue). Given that this defence already exists, you may ask whether the Bill would make any difference if enacted. The proposed statute is a slightly more simple version of the current common law defence. In this way, it is similar to the defence established by the Canadian courts in December (which itself was modelled on Reynolds privilege). Like the Canadian defence, the Bill is concerned with ‘responsible publication’ rather than just ‘journalism.’ This means the standards are not simply defined according the practices of the established media and instead the courts can consider ‘the nature of the publication and its context.’ This would open the way for the courts to possibly develop different standards for blogs and other web-based publications, rather than imposing the standards of an investigative journalist across the board.

The current common law defence sets out 10 factors to help decide whether the media has acted responsibly, while the Defamation Bill sets out 8. Many of the factors in the Bill are the same as in the common law: the seriousness of the allegation; the steps taken to verify the information; the urgency of the publication; and whether the subject of the article had been given an opportunity to comment. That said, some of the factors in the draft Bill are a little more generic and allow for greater flexibility. For example, the draft Bill asks the court to consider what information the defendant had before publication, whereas under the common law test, the courts were asked to consider the defendant’s sources of information.

Ultimately, the draft Bill is not a radical departure from Reynolds. It is not proposing a blanket defence for publications on political issues made in good faith (of the kind seen in the US). Like the current common law defence, its application would vary from case to case and would depend on the circumstances. It is therefore unlikely to remedy the criticism made of Reynolds about the lack of certainty. If the defence depends on the circumstances of publication, both parties are unlikely to know much in advance whether the defence is likely to succeed (and the more generic factors in the test could add to this uncertainty). It also means that the defence will be expensive to run, given that the court will still have to make findings of fact in relation to the publication. Finally, the critics of Reynolds tend not to focus on the test or the 10 factors, but on the way the courts interpret them. Whether a statutory defence makes any difference would therefore depend on how the judges apply the statutory test.

The point here is not to criticise Reynolds or the draft Bill – the approach taken may well be the best way to balance reputation and free speech. Instead the point is that the proposed defence is not so different from what we already have.

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Categories: Uncategorized

Coalition agreement and clean politics

May 20, 2010 Leave a comment

In the coalition agreement, there are several proposals that impact on money in politics. The agreement sets out broad principles rather than policy details, as the section on transparency includes:

We will regulate lobbying through introducing a statutory register of lobbyists and ensuring greater transparency.

We will also pursue a detailed agreement on limiting donations and reforming party funding in order to remove big money from politics.

As I have said before, the significance of the reforms depends on the details. The effectiveness of a register of lobbyists depends on what has to be disclosed and who is subject to it. The line on party funding refers to ‘detailed agreement.’ This was pursued under the Sir Hayden Phillips Review several years ago, but no agreement was achieved. Is there any reason to think common ground can be reached now? More importantly, something like party funding reform should not simply be hammered out through bargaining among the parties. One criticism of the Hayden Phillips Review was that it had an appearance of collusion among the leading parties. Hopefully that approach will not be taken this time. While the coalition has been criticised for referring too many issues to commissions, there is an argument that party funding would be better handled by the Committee on Standards in Public Life, just as it was in the late 1990s.

If a cap on donations can be agreed, a further sticking point is whether more state funds should be granted to aid the political parties. The parties will argue that they need such funds to make up for lost income, but in the current political and economic climate selling that policy to the public would be tough.

That said, the question of state subsidies to political parties has arisen in other contexts. The Liberal Democrats have argued that they should continue to receive Short Money, despite being in government. This argument reflects that party’s reliance on Short Money for a substantial portion of their income,  lacking the private donations of the other two parties. Public funding to the parties can also be found elsewhere in the coalition agreement:

We will fund 200 all-postal primaries over this Parliament, targeted at seats which have not changed hands for many years. These funds will be allocated to all political parties with seats in Parliament that they take up, in proportion to their share of the total vote in the last general election.

The goal is to fund a new activity for the parties. The impact will depend on what is being funded and how much money is made available. Before the election, it was estimated that this pledge by the Conservatives would cost £40k per constituency. If primaries are held in 200 constituencies, this would cost £8 million in total, which represents a significant subsidy that will help the party to publicise its activities. As with other subsidies, care needs to be taken when distributing the funds to ensure that smaller parties are not put at an unfair disadvantage.

Categories: Lobbying, Party funding

Lobbying and a hung Parliament

May 4, 2010 Leave a comment

Public Affairs News reports that lobbyists think a hung Parliament will be good for their business. The article quotes Graham McMillan of Open Road as saying:

Those of us old enough to remember John Major’s tiny majority between 1992 and 1997 will remember how every vote counts, smaller parties count, and changing just one or two MPs’ minds can change policy and legislation. Parliament will be very important again after many years of Labour’s big majorities.

The argument is not just that every MPs’ vote will count. In a hung Parliament, government policy will be subject to bargaining between the parties forming the coalition. With more policy being up for grabs, there is arguably more scope for lobbyists to shape the legislative agenda.

I sometimes hear a variation of this argument from people who admire the British parliamentary system and compare it with the American legislature. They tend to emphasise how weaker party control leads to more bargaining between Congressmen, with each trying to deliver some benefit for their state or donors, etc. By contrast, the legislative goals in the Westminster majoritarian system are thought to be relatively fixed – having been approved in an election – and cannot be easily swayed by outside interests.

The contrast can be something of a caricature and overstates the role of the mandate. The policy commitments at an election are vague and most lobbying will seek to influence the way those policies are fleshed out.  Furthermore, even with a hung Parliament, party whips will still put pressure on MPs, so the party leadership will be the most obvious target for lobbying. While a coalition/weak majority may give some MPs leverage, other may be vulnerable to pressure from whips (for example if they could lose their seat in a second election).

If a hung Parliament really does have the effect suggested above, it might change what lobbyists hope to get from MPs. My impression is that lobbyists now target MPs as a way of acquiring information and applying pressure on a minister, or they seek to influence a member that is on a particular committee or known to have some area of expertise. The change could mean that MPs become more of a focus in seeking to influence the legislative agenda and broader policy goals. Even if this were to occur, Whitehall will still be an important target, as lobbyists often seek fairly technical changes in the application of laws and regulations, rather than sweeping changes in policy.

We’ll have to wait and see what happens, but it underlines the need for greater transparency.

Categories: Lobbying

Democracy Distorted – now published

May 3, 2010 Leave a comment

The book is now in print and can be ordered from CUP. Some of the bookstore websites still list it as not yet published – but it should be in stock soon.

Categories: Uncategorized

Impartiality, debates and injunctions

May 3, 2010 Leave a comment

There are a number of signs that a general election campaign is taking place – posters in windows, signs in gardens, leaflets through doors, party election broadcasts, and finally litigation concerning the coverage of smaller political parties in the broadcast media. Ok, it is probably only lawyers who look out for the last one. Normally the cases concern the allocation of election broadcasts, but this time it was about the leaders’ debates.

The SNP applied to the Court of Session for an injunction to restrain the broadcast of the leaders’ debate in Scotland. They argued that the BBC’s refusal to include the leader of the SNP in the debate was unfair, discriminatory and in breach of the impartiality requirements. I’m not surprised the application did not succeed. It would have been a major upset had the debate been prevented from taking place at such short notice. That said, the Scottish courts have in the past been willing to make similar orders. In 1995, the Court of Session granted an injunction preventing the broadcast of an interview with the Prime Minister three days before the local elections. There it was said that the broadcast of the interview was not urgent and could be delayed until after the elections. The same is not true of the debates, which are of little use after the polling day.

Lady Smith, refusing to grant an injunction, commented on the meaning of impartiality in the media:

It cannot be a simple matter of giving each and every political party equal coverage. Nor can it be a simple matter of taking one point in time during the election period and examining the coverage on a single channel at that stage. […] The respondents explain in their guidance documentation what their approach is, taking account of matters which appear properly relevant such as prior electoral support, all subject to overriding considerations of what is proportional and appropriate over the relevant period , thus leaving themselves with what, on the face of it, seems to be a sensible measure of discretion.

Lady Smith also questioned what is meant by the ‘equal coverage’ demanded by the SNP. Those comments highlight the difficulty in deciding what a fair and equal process means in relation to media coverage.  The problem is that it is impossible to treat all parties equally in this context. The same type of question arises in relation to any subsidy for political groups: if it cannot be made available to all groups, then what is the threshold to benefit from the subsidy? This will to some degree be in the discretion of the broadcaster. The issue is more difficult in relation to debates than in relation to party election broadcasts. Smaller parties can at least ask to be given an extra PEB without that time coming at the expense of the time allotted to another party, but time for the debates is even more constrained. It was also found that the BBC could show impartiality through its coverage of the SNP outside the debates. That said, given the benefits in terms of exposure that the debate gave to Nick Clegg, it is a high stakes issue and you can see why the SNP felt aggrieved.

Lady Smith also based her decision on the SNP’s delay in bringing the petition. They had known about the debates well in advance and to impose an injunction at that stage would have disrupted the broadcaster’s planned coverage.

This was only an application for an injunction and the case will still go on to a final judicial review hearing. Though for reasons I have said before, past judicial decisions suggest that is unlikely to succeed.