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Comments on the Leveson Inquiry

October 14, 2011 Leave a comment

The usual arguments about press freedom and the need for independence have been advanced at the Leveson Inquiry seminars. I have just written a piece for the UK Constitutional Law Blog about it, which can be found here.

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Categories: Uncategorized

Party funding, the media exemption and Murdoch

July 25, 2011 Leave a comment

My article in The New Republic on how the party funding laws preserve the power of the press has just been published – I made similar points in my written evidence to the Committee on Standards in Public Life last year.

Categories: Media, Party funding

What is the basis of Huhne’s threat of legal action

April 25, 2011 Leave a comment

When Chris Huhne threatened to take the No to AV Campaign to court for making false statements, I wondered on what basis he was planning to bring the legal action. There are legal controls in other elections prohibiting false statements of fact about the personal character of a candidate (this was the basis of the Phil Woolas case last year), but this does not apply in referendum campaigns for fairly obvious reasons. The BBC seems to confirm my initial reaction, with the Electoral Commission stating that they have no authority to investigate a false statement in a referendum campaign. Huhne’s main remedy is then in the court of public opinion – he has to persuade the electorate of the falsity the No Campaign’s arguments.

So it looks like the threat of legal action is a false alarm – but it has succeeded in putting the issue up in the news agenda and forcing the No Campaign on the defensive (with William Hague, for example, stating that some of the claims made about AV are just statements of opinion rather than fact). It also puts a bit of clear water between the Tories and Lib Dems. So Huhne’s remarks may prove to be a strategic move.

Categories: Election

Negative campaigns on the web

April 7, 2011 Leave a comment

Earlier this week, Mike Gapes MP presented a Ten Minute Rule Motion to the House of Commons, arguing (amongst other things) that websites making negative attacks on candidates in elections need greater regulation. You can read my comments on a post for the new UK Constitutional Law Group Blog (just launched this week).

Categories: Election, Media

Judges and confirmation hearings

February 9, 2011 1 comment

The possibility of confirmation hearings for Supreme Court judges has appeared twice in the news in the last couple of days. First is the Policy Exchange report, Bringing Rights Back Home by Professor Michael Pinto-Duschinsky. The report focuses on the impact of the European Convention on UK law. Towards the end of the report, Prof Pinto-Duschinsky argues that as judges have an increasing impact on political affairs, political actors should have greater say in the appointment of judges, and then calls for legislative oversight of those appointments:

[…] as the UK Supreme Court begins to adjust to its new role as the apex of judicial power, a more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to parliamentary scrutiny prior to their appointment. […]

The United States system of separation of powers between the three main branches of government combined with checks and balances has a solid logic. It allows sitting judges to carry out their work without fear or favour. But it also ensures that, if the approach of the Supreme Court is consistently out of line with prevailing public opinion, an elected chief executive will nominate members of an elected legislature who will confirm new judges more in line with the wishes of the electors when vacancies on the court occur.

[…] It has been a firm tradition that members of Parliament must respect judicial decisions and must not even criticise them. However, the reality is that the judges themselves have become far less inhibited about making politically-loaded statements, both in delivering their judgements in courts of law and in lectures to outside audiences. It is impractical for judges to expect to be given the licence to participate in political discourse but to be exempt from political criticism.

This should be contrasted with the comments of Lord Phillips to the UCL Constitution Unit. Much of Lord Phillips speech focused the funding arrangements for the Supreme Court and the impact on judicial independence, but he made the following comments on legislative oversight:

There are those who call for some form of confirmatory hearings of judicial appointments under which candidates for the Bench would be submitted to some form of Parliamentary scrutiny.

The Supreme Court of the United States are subject to such a system and I do not believe that this provides a model that we should emulate. It tends to lead to the politicisation of judicial appointments and to the Court being seen to divide on some issues on political lines. I believe that the involvement of lay members of the judicial appointments bodies is a preferable method of securing a democratic method of judicial appointment.

The contrast is clear, Prof Pinto-Duschinsky holds the US model up as an ideal for accountability within the separation of powers, while Lord Phillips sees it as leading to the politicisation of the judiciary. The difference is unsurprising. It is easy to see how those concerned with politics/political science will call for greater legislative input, whereas most lawyers and judges in the UK tend to be hostile to the idea, seeing it as a form of interference (or dismissing the idea that hearings would have any value). Lord Hoffmann, in his introduction to Prof Pinto-Duschinsky’s report, specifically refers to his disagreement with the report’s author on this point.

In the past, I have had considerable sympathy with the US model. It means that top judges are well-known and that people are informed of the different approaches that can be taken by the judges. While the Senate confirmation hearings can sometimes be bitter, it can also provide a national conversation in which people deliberate and consider what the constitutional values should be. That said, I also have reservations about the US model. The British Constitution has a very different tradition, and procedures from another jurisdiction cannot be transplanted over here and assumed to have the same effect.

There are also questions about how effective judicial appointment hearings are in promoting accountability. The ability of Parliament to shape the judiciary would depend on the number of Supreme Court vacancies arising at any one time, and this might vary from parliament to parliament (although with our judges retiring, there will be more turnover here than in the US).  It is also not clear whether judges in Britain can really be identified as having the same ideological leanings as their US counterparts, which may limit the value of the hearings. Finally, there is a real danger that if legislative oversight took off over here, those judges that have never said anything interesting or controversial and never taken an unpopular stand on an issue would be appointed most easily. Blander judges would be less likely to stir up controversy at the hearings and less likely to attract a legislative veto. Are these the people we want on the top court?

Sometimes when I speak with American academics, they suggest it is only a matter of time before the UK follows the US model. I’m not so sure. My feelings on the issue are mixed, but the proposal is one that is worth some consideration and discussion.

Categories: Uncategorized

Donations from the City

February 9, 2011 Leave a comment

The Bureau of Investigative Journalism reports that more than 50% of Conservative Party donations come from the City. Not sure this is news to anyone – though the report does give some details on some of the largest donors.

The report in the Guardian comments:

The study shows the impact that Michael Spencer has had on party funding. He was appointed by Cameron as Tory treasurer in an attempt to reduce the influence of Lord Ashcroft, the party’s former deputy chairman. Spencer was asked by Cameron to increase the number of relatively small donations of £50,000 to curb the influence of large donors such as Ashcroft, and for these smaller donations the City was place to look.

While the focus in the headlines is with the big donors, the comment above suggests that the Conservative are already preparing for donations to be capped at £50k or £25k. If such a cap is imposed, they will be in a position to tap into a pool of donors from the City that can contribute the maximum sum each year. If other sources of funding (whether union, company or public) are restricted, then the other political parties may well struggle to match that fundraising effort.

Categories: Party funding

Campbell, costs and privacy

January 21, 2011 Leave a comment

The Naomi Campbell case is back in the news following a decision by the European Court of Human Rights that the costs regime for the privacy case violated Article 10 (protecting freedom of expression). The cost issue concerned conditional fee agreements (CFAs) in which lawyers claim a success fee if they win a case (sometimes the success fee doubles that lawyer’s bill). The losing party then has to pay those legal fees. While CFAs were introduced for a good purpose, to widen access to justice, it can have harsh effects on some defendants that face very hefty legal bills. In privacy and defamation cases, there is an additional problem that the legal bills may have a chilling effect on the press.

None of this is new and has been noted by a number of judicial decisions and a number of government reviews. What is striking about the latest Campbell case is that the UK government was defending a costs system which it has openly acknowledged to be seriously flawed in a series of consultations and reviews. At paragraph 182 of the decision, the government argued that there is no inconsistency in its position – they accepted there are problems with success fees, but that these problems do not amount to violation of Article 10 and are within the margin of appreciation. That said, the domestic consultations and reviews planted the seed for the Strasbourg Court’s conclusion. The Court relied heavily on the Jackson Review, the Ministry of Justice consultations and the Culture Media and Sport Committee report to find that the position on success fees taken in Campbell No.2 (the domestic decision on the costs) is no longer sustainable. The Court therefore found the costs regime violated Article 10.

The case is not just about the costs issue. The Mirror first argued that the initial finding of a breach of confidence/misuse of private information violated Article 10. The domestic court had found that the Mirror was entitled to publish the fact of her drug use, but not the additional information on the treatment she was receiving or photographs of her leaving the treatment centre. The gist of the newspaper’s argument was that publication of the photos and additional information should fall within the editor’s discretion to illustrate the story. Unsurprisingly, the Strasbourg Court rejected this argument. The Court emphasised that editorial discretion is not unlimited and that the state has a wide margin of appreciation in striking the balance between Articles 8 and 10. The Court then endorsed the reasons given by the House of Lords (see para [151]).

The Court said that parts of the House of Lords’ ruling reflected the approach taken by the European Court of Human Rights in Von Hannover. However, the Court did not go on to address or resolve any of the tensions between Campbell and Von Hannover (there are some differences in the formulations taken in the two cases as to what types of information are protected by Article 8).

Finally, Judge David Thor Bjorgvinsson dissented on this point, in particular arguing that the Court should not give a wide margin of appreciation in such cases, and that it should take a ‘strict scrutiny’ approach by making its own assessment of the balance between Articles 8 and 10. He would have found a violation of Article 10 on the liability issue as well as on costs.

The finding of a violation on the costs regime is an important development, but in practice it should lead to the faster implementation of reforms that were already in the pipeline.

Categories: Media