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Archive for May 13th, 2010

Jack of Kent and the Osler libel case

Jack of Kent reports: Thursday, 13 May 2010

Dave Osler’s Splendid Victory – but a Libel Fail

If you wish to see Johanna Kaschke’s response you may do so here.

I am making no comment – simply because Jack Of Kent will be doing so, and I don’t tread on a fellow blogger’s stories before they publish (or at all if I agree with them!)

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The Happy Couple

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To avoid over complicating the issue for the purposes of this brief post, let us keep definition of The Rule of Law simple

“A set of legal principles  providing the basis and foundation of a civilised, fair and democratic society.”

However you define the Rule of Law it is beyond doubt  that you cannot run any recognisable society without it – yet our system of law and justice is creaking, underfunded, under developed and is not really meeting the needs of all in society.  Nor, tellingly and worryingly, do all have access to law or justice.

The challenges to the new government in the legal sector are many and various – too many to mention in this brief piece – but I shall be returning to this theme consistently over the months ahead.

The new government hasn’t got off to a particularly good start with the proposal on Day One that parliament can only be dissolved if 55% of MPs say it can.  While I am happy with the idea of a fixed term parliament, the proposal that dissolution can only take place if 55% of MPs vote accordingly is pregnant with difficulty and could lead to oppression?  What if a minority government (should the Lib-Dems re-cross the floor)  lost a vote of confidence which fell short of 55%.  The government will, no doubt, address this – but in terms of PR,  the bald policy statement of itself does not fill one with confidence.

The Coalition agreement provides for a significant and wholesale reform of the law.

This will include:

  • A Freedom or Great Repeal Bill.
  • The scrapping of ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database.
  • Outlawing the finger-printing of children at school without parental permission.
  • The extension of the scope of the Freedom of Information Act to provide greater transparency.
  • Adopting the protections of the Scottish model for the DNA database.
  • The protection of historic freedoms through the defence of trial by jury.
  • The restoration of rights to non-violent protest.
  • The review of libel laws to protect freedom of speech.
  • Safeguards against the misuse of anti-terrorism legislation.
  • Further regulation of CCTV.
  • Ending of storage of internet and email records without good reason.
  • A new mechanism to prevent the proliferation of unnecessary new criminal offences.

We must not forget, of course, the planned reform of The House of Lords, electoral reform, the devolved powers to Scotland, wales, Northern Ireland, Banking reform and a host of other matters.

Turning to a number of specific problems… but just a few problems for this first analysis:

1. Funding: Already underfunded, the criminal and legal aid system is to be cut back still further.  There is little point in clarifying laws, repealing laws, preserving trial by jury, reviewing libel law et al if adequate provision is not made so that those in need can be assisted with fees for proper legal representation or be re-imbursed for costs should they be found not guilty.

2. Public knowledge: Access to law and legal knowledge does not, of course, always have to come through a qualified lawyer in person.  Much good work has been done by government in publishing law on the internet.  Much good work has been done by voluntary bodies and individuals in providing the public with high quality access to caselaw, analysis, law and legal materials over the internet.  This, hopefully will continue.   I was talking to Chris Kenny, Chief Executive of The Legal Services Board for a podcast for the College of Law Inside Track series.  Chris Kenny and I explored the possibility of an internet based legal knowledge base on the lines of NHS Direct.  Law is complex – but so is medicine and much value has been seen from NHS, why not for Law in the less complex areas?

3.  Over regulation: There have been well over 3000 new criminal laws in the last 13 years.  They say that there are over 24,000 new laws if one includes civil law.  Much of this law is necessary, but some of it is repressive and the present government has signalled a wholesale repeal of repressive legislation.  To signal is relatively straightforward – to do is quite another thing.  We shall see if they perform this promise.  I suspect that we will be disappointed, but I would be delighted to be proved wrong.  Government tends to develop a taste for power, control and regulation.  Civil liberties, say the cynics (and I include myself in this grouping – always) is for Opposition.

4. Access to law and legal advice: The Legal Services Act provides a base from which legal services may be delivered in imaginative and entrepreneurial ways.  Leaving aside the interests of the big law firms who do so little in terms of law affecting individuals in society and serve the interests of government, corporations and the banking world, primarily – what of areas of law affecting families, tenants, consumers, the poor, the ill, the injured, the libelled or recipient of libel claims?   I could go on.  Lawyers are not cheap, but they are not all expensive.  Perhaps the government could consider broadening the scope of legal knowledge provider beyond the formal barrister, solicitor, legal executive route to include funding for legal knowledge provider so people can look into their rights more clearly on the internet without, necessarily, having to resort to the skills and expense of a lawyer?  Our court system is creaking – much work needs to be done here.  Our prisons are over crowded, some say, with too many people who should not actually be in prison at all.

5.  Who have we got dealing with this?:  We have Ken Clarke QC MP  as secretary of State for Justice and Lord Chancellor – an experienced man, but not always the cuddly liberal of television fireside chats on Newsnight.  Ken Clarke, described by former Lord Chancellor Lord Falconer as an independent man, an independent thinker, will, I have no doubt, be able to talk with senior figures on the legal industry – but we must not forget that he is a Conservative, initially tempered on the forge of a Thatcher government, and he has had corporate interests in hedge funds and tobacco companies which may indicate that he has  a fair bit of work ahead to read into the very different world of law and society at grass roots, law centre and legal aid level.  I am happy to assume that he will do this.  He is, I am advised, that type of man, that type of thinker.  We shall see how liberal he in soon enough and, fortunately, many bloggers and analysts are watching.

We also have as Home Secretary, Theresa May, a woman untested thus far in the world of law and order in terms of direct experience.  Her appointment came as a bit of surprise and was certainly not predicted by any of the leading law journalists or political commentators.  Theresa May has a great deal of experience  – but it is fair to point out that she is not a known liberal.

She was against the repeal of Section 28 (it was eventually repealed in 2003).

Well we recognise that section 28 has caused offence to some people. What we’re looking for fundamentally is protection of children and certainly obviously we’re reviewing all our policies and we will look at the issue of section 28. And what we’ll be looking to ensure is that if repeal were proposed what would be put in its place because what we want to ensure at all times is protection of children. But of course there are issues that people have rightly raised about the fact that section 28 concentrates on education and local authorities, there are – literally being produced by health authorities for example.

Well I think at the time it was necessary in order to address a particular problem that had arisen. Now some years on there is a question as to whether it’s the right way to ensure the protection of children. We’ll be looking at that but what is fundamental to what we want to do is that issue of the protection of children.

Theresa May on  Section 28.

You may draw your own conclusions as to what Theresa May meant those few years ago.  Some interpreted her remarks as insulting and homophobic. I understand that Theresa May also has responsibility for Equality.  The Home office has been a graveyard for many – perhaps the next victim will weather the storm of a department described by Dr John Reid as ‘not fit for purpose’?  I certainly hope so.  Let us hope that she has the intellect, energy and broad eye needed to do a very difficult job. One thing in her favour – she was quite happy to tell her political colleagues that people regarded her party as the ‘nasty party’, so she is no shrinking violet or old style Tory on that front.

Early days, many problems – we shall soon find out whether the government of LibCons is up to the mark – and it is entirely right that we should be watching closely.  Even The Sun would agree with that – because they also plan to watch carefully!

***

You may, of course, buy some excellent books on the law, human rights and civil liberties from my favourite law bookshop!  Wildy & Sons!

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