Archive for the ‘Uncategorized’ Category

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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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.

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Twitter case and free speech

October 5, 2010 Leave a comment

See my article for the Guardian’s Comment is Free here

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Donations to parties published for second quarter of 2010

August 23, 2010 Leave a comment

The Electoral Commission has just published the stats on donations to political parties in the second quarter of 2010. A quick glance at the stats shows that Labour depended on a greater proportion of very large donations in that period. It received 9 donations of more than 250k (totalling 7 million pounds). By contrast the Conservative Party received 7 donations of more than 250k, but these in total came to just over 2.7 million pounds. Unsurprisingly, the reason is that Labour got some million pound plus donations from unions and a few wealthy individuals.

The Conservatives received 15 donations bewteen 100-250k (totalling 2.3 million pounds), while Labour received 6 donations in the same range totalling just over 1 million pounds. Of donations between 50-75k, Labour received 2 totalling 122k and the Conservatives received 15 totalling 931k. Of donations between 25-50k, the Conservatives received 55 donations totalling 2.48 million pounds, while Labour received 10 donations totalling 355k pounds.

Of the smallest bracket of donations, totalling 7.5-25k, the Conservatives received 529 donations totalling 3.5 million pounds. Labour received 491 donations totalling 1.78 million pounds.

A major caveat to all this: these numbers do not aggregate separate donations from the same source (either given in the same quarter or over the whole year). This means the numbers may hide some more large donors. This (very) rough glance at the numbers shows how both parties rely on high value donors, but suggests that the Conservatives´donation income is spread more across donors in the various brackets. This goes to show why in the discussions of party funding, trade union donations is such a high stakes issue. It also suggests that the Conservatives seem to be more successful in securing a wider range of donations that are large (ie beyond the reach of most people), but not over the million or half million mark. So probably not a surprise that the Conservatives may have a wider range of supporters that can give 50k, 25k or a thousand pounds. This does have implications if a cap on donations is fixed at 100k, 25k or 10k. It could potentially cut off the institutional support to Labour, while giving an advantage to the  party that can attract the widest range of rich (but not necessarily super-rich) supporters.

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No photos on our land

August 8, 2010 Leave a comment

A tourist walking through Cambridge town centre is told by security that he cannot take photographs of a row of shops. Sounds like another heavy-handed use of s.44 of the Terrorism Act? No. This wasn’t a policeman using statutory powers to stop the tourist, but a private security guard at Grand Arcade. You can read the story in the Cambridge Evening News here.

You might think it is fair enough, as Grand Arcade is private property (an indoor shopping centre). This line of thinking says that if you enter the land, you do so subject to the conditions of the landowner. However, it is also a publicly accessible area that forms part of the town centre. Unlike police powers, the private security guard’s actions are not subject to legal review and are much less accountable. Remember too that it involved something as innocuous as a taking a photo, so any more expressive activities like leafleting are probably a non-starter. It goes to show that the private ownership of central quasi-public spaces come with costs in terms of liberties (even if it does bring other benefits in terms of investment).

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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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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.

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