Westminster Watch - June 2011

Is anything private anymore? Charles Hale and Toby Craig investigate…

Did you hear the one about the ‘luvvie actor’, ‘family man footballer’ (or possibly several of them) and ‘one of Britain’s most successful businessmen’? No? Sadly, nor did we, but if we had we wouldn’t have been able to tell you anyway, such is the pervasive influence of the tabloids’ latest pet topic; the infamous Super Injunction. And it’s not just Fleet Street’s ire which has been raised.

Parliament and the Prime Minister have also started to ask probing questions about defamation and privacy laws and what they consider to be judicial law-making.  But it’s all so confused.  Libel is being spoken about with privacy injunctions as the Al Qaeda is spoken of with the Taliban... they are not one and the same and it’s lazy reporting to suggest otherwise.  If you actually want to understand the legal basis for kiss and tell injunctions and you can’t find Desmond Browne QC, see Eady J’s judgment in the Thomas case at http://bit.ly/ieTgVe.

Questions have been raised in the Commons and the Master of the Rolls has commissioned a special group to explore the issue further. As WW went to press, that group was expected to reveal its findings. Alongside that process, a Joint Committee of both houses is taking evidence on the Draft Defamation Bill. We really can’t say anymore for legal reasons.

The topic is gaining increasing traction, as the media (with its own agenda, hostile as it is to any bars on freedom of expression for reasons both principled and commercial) gets its teeth stuck into the story, constantly finding new and creative ways of drawing attention to the multiple online breaches of the injunctions. The papers, unsurprisingly, have seen questioning the integrity of the injunctions as another way of reinstating their ability to break the traditional Sunday morning exclusives. They have also issued some very strong criticism and damning profiles of the judges who have granted injunctive relief and sadly as ever the criticism is based on not much of an understanding of the law or the job of the judges in upholding it (Rusbridger’s Guardian lecture on the subject being a notable exception).

But as the Trafigura case demonstrated, super injunctions are not just the domain of celebrities accused of infidelity. The potential effect is much wider.  There is a genuine public interest debate to be had and it doesn’t involve anyone from Big Brother. It is clear that the current stand-off needs to be lanced to prevent reporting around the edges and to ensure that twitter leaks do not harm the judicial process and those the injunctions are designed to protect (very often innocent family members).

A night of mixed fortunes

For all the talk of cover-ups, Nick Clegg might have been forgiven for wishing he could get an injunction to stop the results of the local elections and AV referendum seeing the light of day. Sadly, no such luck, as the Liberal Democrats’ heavy defeats at the polls were clear for all to see. The night wasn’t much better for Ed Miliband, with some council gains not papering over the cracks of a crushing loss in Scotland, an inability to capture a majority in Wales and Tory gains in the local elections. Apart from his party’s no-show north of the border, the Prime Minister will have emerged with most reason for optimism, looking ahead to a future general election with the current voting system now secured for some time to come. With the AV system having been rejected so emphatically by the electorate, it is difficult to see how another referendum will be viable for some time. And yet, despite a fractious campaign, the Coalition is almost certain to carry on, not without its tensions, but with renewed commitment to tackle the deficit. It is hard to see why the Liberals would want to withdraw their support now and risk electoral annihilation.

And still we wait...

Hopefully, by the time Counsel appears on newsstands, the Government will, at last, have published its response to its legal aid consultation. We will not be alone in hoping that it will prove to have been worth waiting for. 

Parliament has continued to take an active interest, both via written questions and debate, most recently in Westminster Hall, introduced by Dr Julian Huppert, the Liberal Democrat MP for Cambridge. The Bar Council provided briefings to a number of speakers, but the Legal Aid Minister, responding on behalf of the Government had little to add to the commitment to publish a response in due course. That was to be expected, despite a number of thoughtful and helpful contributions from a number of informed MPs. The one revelation, which will hearten those who have been following the issue, is that the Government is looking again at its definition of domestic violence in family law cases, which readers will know the FLBA has lobbied strongly on.

During his speech, Dr Huppert warned of a potential “double-whammy” effect in some areas of law if both legal aid and Jackson reforms are implemented. The inter-relationship between the two seems evident. The Bar Council and Law Society debated the Jackson reforms in further detail at the All Party Parliamentary Group on Legal and Constitutional Affairs with Sir Rupert Jackson and Professor Ken Oliphant.

The Bar Making a Difference

Whilst the MoJ has been subject to a great deal of scrutiny, and indeed criticism, over a number of its reforms, it is to be congratulated on the publication of a new action plan, setting out how the UK’s commercial arbitration, mediation and court services will be promoted to a global audience. Endorsed by the Bar Council, the action plan will, in the words of the Trade Minister, Lord Green, “ensure that [the] professions remain at the core of the UK offer and that we highlight the key role they have to play in our future economic growth.” The Government’s Growth Strategy has been mentioned on these pages before, and the MoJ’s development of it, in conjunction with the Bar Council and others, is extremely welcome.

It is that positive message to which the Bar must continue to cling. The privately funded Bar continues to flourish and its value and expertise are recognised globally. For privately funded practitioners and for publicly funded barristers looking to diversify, opportunities at home and abroad remain. It will be a significant fillip to be able to call on some of the Government’s resources to develop or consolidate links with other jurisdictions where the Bar has a role to play.  WW’s glass remains half full!

Charles Hale is a barrister at 4 Paper Buildings and a member of the Bar Council.

Toby Craig is the Head of Communications at the Bar Council
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