Matthew Taylor on the courts and privacy

No, not that Matthew Taylor. Or that one either, come to think of it.

I am talking about the Liverpool Conservative (I once unkindly suggested we should have him stuffed) blogger who writes MTPT, stoopid. In a recent blog post he says:

Judge-made law – like the current law of privacy in the UK – is able to advance by small incremental steps, without properly engaging with the broader impacts of its emergent principles. Unlike judge-made law, any statutory privacy law has to begin by decide what principles it proposes to follow, and then engaging with the effects of those principles when applied to other areas – such as the reporting of evidence in criminal trials.

In developing the law of privacy in the UK, the civil judiciary have in practice (given the reality of the costs of civil litigation) created a privileged position for wealthy claimants, and for participants in family court proceedings. Participants in criminal cases, or those who cannot afford to spend several thousand pounds on legal advice and representation, do not have proper access to the law of privacy that has been developed.

Put it more simply: A footballer covering up his infidelity is afforded greater protection by the English Courts than the father of a murdered child.

Matthew shares my concern that, in his words, "the law of privacy has been without debate or public engagement".

Six of the Best 170

David Boyle on The Real Blog celebrates the "genius" of Nick Clegg's bank share giveaway: "The Thatcherite privatisations involved a minority who did not exercise their ownership rights. This plan will involve a majority and the possibility of popular control."

Birkdale Focus has been reading Matt Cole's new biography of Richard Wainwright.

Edmund Burke is generally claimed as the intellectual father of British Conservatism, yet for most of his career he was a Whig and he was the most important ally of Charles James Fox. Liberal Vision has been reading his prophetic Reflections on the Revolution in France.

Next week, the London School of Economics hosts an Index on Censorship debate under the title "Injunctions are a necessary evil: Privacy, free speech and a feral press." MEDIAPAL@LSE looks at the issues.

Sptialfields Life meets the 97-year-old writer Emanuel Litvinoff.

Those who believe the world is going mad will find plenty of supportive evidence on Wartime Housewife: "Boy the Elder came home from school today with the following information. There are nine hundred children at his school between the age of 11 and 14 and they have a large playing field with lovely country views … which they have not been allowed to use for recreation at lunch or break time. They have now been told that they may use the field in groups of no more than twenty two children at a time and, if they do manage to get a go, they have to wear hi visibility tabards."

Six of the Best 167

"If elected officials resort to using superinjunctions - how can the public, who elect them, actually know whether it is a legitimate move to protect family privacy or something more sinister to hide the sort of activities that would make the the MP or candidate unsuitable for public office?" Living on Words Alone considers the issues raised by the news that Zac Goldsmith was granted a super injunction to prevent his private life being discussed before the last election.

Yellow Tinted Spectacles visits Cowley Street.

When your beliefs are challenged with facts, you alter your opinions and incorporate the new information into your thinking. Nonsense! says You Are Not So Smart.

Philosophy in pubs: what's that all about then? Leicester's Equality & Diversity Officer explains.

The Complete Spring Heeled Jack Page examines a 19th century urban myth.

"St Pancras may well deserve to be lauded as a Victorian cathedral of steam, but Somers Town was its essential counterpart: a temple to consumerism on a massive scale. The goods yard, however, could not muster a line up of poets and architectural historians to shield it from the wrecker’s ball. So while St Pancras was spared, its unsung adjunct was levelled." Current Archaeology excavates the secrets of Somers Town Goods Yard

Privacy law is too important to be left to the judges

Some years ago I attended a day course on media law. It was taught by a former journalist who had later taken a law degree, and what a remember most from the day is his stories of the various scams he used to get up to as a young reporter. In the days when you had to phone your copy in, the ability to extract free calls from a public phone was a useful way of making those expenses go further.
But he did cover the basics of libel, parliamentary privilege and qualified privilege, and something else he said has stayed with me. It was that the judges were clearly determined to create a new tort of privacy and that we should keep an eye on how this developed through case law.

How right he was.

At the heart of the current farce over the law on privacy lies this  judicial activism. Privacy law has been developed through judgments in the courts and not through debate in Parliament or wider society.

For many on the left, who reason that the public is irredeemably conservative in its social views, this has been rather attractive. Battles they dare not fight or could not win at Westminster could be fought instead in more patrician European institutions.

Certainly, a despair of ever winning in Britain again was one of the reason for Labour's embrace of the European ideal under Neil Kinnock.

Add to this despair amongst politicians the instinctive arrogance of the legal profession and you have a powerful and toxic brew.

I am a Liberal and am instinctively in favour of free debate, whether in the press or on Twitter. I find the demand to prove a "public interest" before something can be published absurd. It is those who favour censorship who should be forced to show it is in the public interest.

Finally, we are told that blackmail is an important element in the case that has caused all the trouble. But blackmail is a serious criminal offence. If there is convincing evidence that someone has committed blackmail then he or she should be arrested and charge.

It should not be possible to raise the spectre of blackmail, gain an injunction and then leave the matter hanging in the air for ever after. You would not allow it with murder: why allow it with blackmail.

All of which is a way of saying that I fully support John Hemming's actions in the Commons today.

Charles Dickens on privacy and superinjunctions

From chapter 39 of Bleak House:

The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.

John Hemming fears new gagging order could see journalists imprisoned

John Hemming, the Lib Dem MP for Birmingham Yardley, is stepping up his campaign against the extraordinary injunctions being granted by British courts these days.

According to a report on the Guardian website this afternoon, John is concerned about a new breed of injunction, used in relation to a case in the high court in London last week, which means journalists could face gaol simply for asking questions.

The newspaper quotes him as saying:

"This goes a step further than preventing people speaking out against injustice. It has the effect of preventing journalists from speaking to people subject to this injunction without a risk of the journalist going to jail. That is a recipe for hiding miscarriages of justice ... It puts any investigative journalist at risk if they ask any questions of a victim of a potential miscarriage of justice … I don't think this should be allowed in English courts."

John is launching an inquiry in parliament into excess court secrecy. He is planning to collect a range of gagging orders and then present to the justice select committee in a number of Parliamentary petitions later this year.

Anna Raccoon recently investigated the use of injunctions in an attempt to prevent people approaching their own MP for help.

Trafigura gives in: Minton report published

From the Daily Telegraph site this evening:

A suppressed report which details how an oil company dumped toxic waste in Africa that may cause serious burns and even death has been released following a parliamentary row over freedom of speech.

The study commissioned just weeks after the incident in West Africa concluded that the dumping would have been illegal under European pollution laws and suggests that the “likely cause” of the illness reported by locals was the “significant release” of potentially lethal gas.

The report had been kept secret after Trafigura, one of the world’s largest independent oil trading firms, obtained a "super injunction" that threatened the centuries-old privilege of newspapers to report what MPs can say freely in the Commons.

On Friday night, as the High Court gagging order was lifted, senior figures at Trafigura admitted their approach may have been “heavy-handed” and insisted it had not been their intention to try to gag Parliament.

Oddly, the Telegraph seems to have beaten the Guardian to the story.

Later. Now you can download the Minton report from the Guardian front page.

House Points: Carter-Ruck, Trafigura and MPs' expenses

The first House Points of the new parliamentary season.

My copy of Liberal Democrat News has not arrived yet, but I believe the editor dropped an "alleged" in here somewhere.

"Wilkes and Liberty"

It has been a quiet week at Westminster. MPs arrived back to find the rooftops occupied by activists protesting about global warming. The demonstrators didn’t stay up there long – these October evenings can get very chilly.

Then MPs had to wait for a letter from Lord Legg telling them if they were going to be asked to repay some of their expenses.

And then it emerged that a judge had granted the oil company Trafigura an injunction against the Guardian. This banned the newspaper from mentioning that Paul Farrelly, the Labour MP for Newcastle-under-Lyme, had put down a question about an earlier Trafigura injunction preventing the publication of a report on the dumping of toxic waste in the Ivory Coast.

Not only that. The new injunction even banned the Guardian from mentioning that it existed.

You probably know what happened next. The newspaper’s veiled report gave readers just enough clues to be able to find Farrelly’s question on the Parliament website and they did the rest. Soon the wording of that question, and the names of Trafigura and its lawyers, were spread across the world. Interestingly, this was thanks more to Twitter than the old steam-driven internet.

MPs were furious. Labour backbenchers met Gordon Brown to voice their anger. Their chairman was asked to sound out his counterpart on the Tory 1922 Committee about a joint response.

Except, of course, it was not Trafigura’s injunction MPs were angry about. It was Lord Legg and his letters that got them worked up.

There were honourable exceptions – Nick Clegg, David Heath and Paul Burstow all spoke out in defence of the public’s right to unimpeded reporting of Parliament – but their expenses were far dearer to the hearts of most members. Second houses, furnishings, gardening... that was what moved them.

It used to be different. In the 18th century the Radical MP John Wilkes went to the Tower in defence of his right to report parliamentary proceedings and later sued the secretary of state who had him arrested. “Wilkes and Liberty” was the cry of the people.

Yes, MPs used to be jealous guardians of their privileges. Today – and I have taken the precaution of locking the doors so you cannot escape this – they just worry about their privet hedges.