In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.
The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.
First, the court placed the police decision-making under anxious scrutiny.
This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.
This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.
Second, and just as refreshing, the court took the legal right to freedom of expression – under Article 10 of the ECHR – seriously.
This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.
*
This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.
Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.
On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:
Bob Seely – A number of lawyers, representing oligarchs, have written threatening letters to national newspapers saying that reporting our words can be unlawful & seriously defamatory… they're now trying to intimidate Members of Parliament pic.twitter.com/57G4n3iH4E
“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.
(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)
This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.
The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.
*
But.
Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.
The protection is instead ‘qualified’ – and so is subject to a condition.
This condition is (in general terms) that the report – or other repetition – is not malicious.
This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.
The onus is on the claimant to show this malice.
So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.
The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.
But nothing at law stops them issuing the threats.
*
How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.
For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.
*
There is the eternal question of what constitutes ‘malice’.
*
And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.
As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:
I’m not suggesting it’s effective (suspect they will be cautious) but SRA can investigate and prosecute if circs right https://t.co/PDYvF6ORFS
The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:
In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.
*
Perhaps there should be further protections.
For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.
Perhaps this should be extended to defamation threats.
And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.
Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.
*
None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.
Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.
And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.
*
We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.
It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.
But it is gap that has not yet been filled.
And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.
*
For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.
Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.
So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.
**
Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.
*****
Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together.
So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
*****
You can also have each post sent by email by filling in the box above (on an internet browser) or on a pulldown list (on mobile).
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
And, if those four pages are too many, just read the bullet-points – especially the first:
“Russian influence in the UK is the new normal.
“Successive Governments have welcomed the oligarchs and their money with open arms, providing them with a means of recycling illicit finance through the London ‘laundromat’, and connections at the highest levels with access to UK companies and political figures.”
You would think such a conclusion of a senior cross-party committee would have made the political news.
But – unless you have a particular interest – you would have never known it had been published at all.
A wise civil servant once observed that if you want to hide something, just publish it – for nobody will read it.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Today’s post will be just a short one, so as to link and draw attention to this judgment.
Paragraphs 38 and 39 are beautiful and quietly lethal.
By way of background, the corporate claimant – the Eurasian Natural Resources Corporation – sued in respect of the outstanding book Kleptopia.
(Buy it here – EDIT This is now an Amazon link, as the previous Bookseller link says they are out of stock.)
The judge held that the book did not hold the defamatory meanings pleaded:
“In short, the Book does not bear the defamatory meaning contended for by the Claimant because, read in their proper context, the allegations complained of by the Claimant do not refer to any ENRC corporation” (paragraph 36).
But.
The judge goes on and says, in effect: hang on, this book does make serious allegations about the claimant, so why is the claimant not suing on those serious allegations?
Why, asked the judge in effect, is the Eurasian Natural Resources Corporation not suing for being called “[a] corporate front – “a charade” [ ] used [ ] for criminal activities including corruption, money laundering, theft and embezzlement. “
Well, why indeed.
This, of course, is not an express admission by the Eurasian Natural Resources Corporation that it is such a front.
But one suspects these judicial comments in a legally privileged, public judgment were not those sought by the claimant in bringing this case.
Less SLAPP – and more of a slap-down.
****
Disclosure and disclaimer: the journalist defendant also works for the Financial Times, where I am a freelance ‘contributing editor’ but nothing in this post refers (or is intended to refer) to any case brought by Eurasian Natural Resources Corporation against any other FT entities and/or individuals; and I also long ago happened to work for the claimant’s law firm.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Imagine a serious piece of proposed legislation, for serious times.
Imagine that legislation is substantial – a Bill of 64 pages.
Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).
Imagine that legislation is coercive – creating at least 12 new criminal offences.
Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.
And now…
…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.
This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.
This is not how fundamental legislation should be put in place.
*****
Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together.
So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
*****
You can also have each post sent by email by filling in the box above (on an internet browser) or on a pulldown list (on mobile).
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.
And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.
I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.
This is not good enough for some commenters – and I have been told that I am somehow making excuses.
But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.
And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.
It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.
And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.
(Perhaps that is a hint that I should keep these blogposts succinct!)
The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.
When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.
Individuals have rights, and there are things no person or group may do to them, without violating their rights.
And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.
These rights may not be absolute – and property rights especially can be subject to interferences by the state.
But such interferences need to have a lawful and reasonable basis and follow due process.
And this is the same for oligarchs, as it is for anyone else.
That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.
And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
There is a negotiation tactic when a party wants to be robust or unreasonable but wants to appear to be nice and approachable.
The tactic is to blame the lawyers: “I would agree, you see, but I have been told by my lawyers that I cannot”.
And nobody minds – the party gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.
There is a similar move in politics and media.
The politician or pundit gets to blame the lawyers – and to get easy nods and cheers.
“It is the lawyers to blame.”
In turn the less alert of those listening will roar and demand that the lawyers be named and shamed.
And nobody minds – the politician and pundit gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.
*
This political and media dance routine obscures what lawyers cannot be blamed for – and what they can be.
Individual lawyers at any one time can only work with the law as it stands.
If the law does not permit or enable a thing, then a lawyer cannot make a difference.
If you want to stop a person from having or exercising certain rights then legislative change can often make the difference wanted.
Take for example, sanctions on oligarchs.
Oligarchs will have rights and can exercise their rights.
That lawyers advise and assist so as to make those rights effective is not – ultimately – the fault of the lawyer.
If the government really wants to sanction an individual then there is little that lawyers can do to prevent it.
There are certain limited exceptions – obviously in respect of life and liberty – but almost anything else is possible if the government is determined and goes about it in the right way.
Take, for another example, defaming oligarchs.
Again, oligarchs have a right to defend their reputations.
And lawyers will be there to advise and assist so as to make that right effective.
But such lawyers can only work with the law of defamation as it stands – and it is entirely open to the government to seek to reform the law of defamation.
There are reforms that could be made – for example to make SLAPP legal cases far more difficult to threaten or to make.
Determined efforts and reforms, however, would take time and effort by the government – and so it is easier to blame the lawyers instead.
There will always be those who will clap and cheer.
*
But.
The defence above does not absolve lawyers in England and Wales from personal responsibility.
*
That said, barristers – those lawyers who tend to do advocacy in court – are (supposedly) bound by a cab-rank rule which means they are (supposed) to take case in their area, regardless of who are instructing them.
As such barristers can be instructed in a matter contrary to their own views.
*
Solicitors, on the other hand, are not bound by a cab-rank rule.
And it is solicitors who will be sending the letters on behalf of oligarchs in respect of sanctions and defamation.
Solicitors do get to choose who they act for.
Indeed, the business models of certain solicitor practices are based on there being numerous foreign corporations and high net-worth individuals wanting to enforce rights in London.
(And for what it is worth, I choose not to act for oligarchs or foreign states, and do not act against newspapers, even though I am a media and commercial lawyer.)
But.
If one a solicitor does not want to act for such clients in such cases, then there will be other solicitors who will.
Solicitors may be able to choose who they act for, but they cannot choose to change the law.
And so here – even without denying the personal responsibility of lawyers who choose to act for such clients – we again have the ultimate problem being the law, rather than lawyers.
The hard truth is that, although it is satisfying to blame – and name and shame – lawyers, it is the law that is at fault.
What lawyers do is a function of that law.
But that would require difficult questions of how the law came to be in the state that it is.
And that is why law-makers and their political and media supporters choose to blame lawyers instead.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
As the Russian imperialist invasion of Ukraine unfolds, and as it becomes plain the autocratic hold which Putin has over the Russian state and people, it may not be a good time to point out that – on paper – Russia has a written, liberal constitution.
But let us consider this point any way.
You can look at an English translation of the Russian constitution here (though there have been amendments since this version).
Scroll down – and you will find all the old favourites of liberals and greatest hits of progressives.
You can see almost every provision that would gladden your heart to see written in a codified constitution.
And all…
…completely useless.
For perhaps the least important constitutional thing in any liberal state are the words written down on paper.
More important are checks and balances, by which provisions can be practically enforced against those with political power.
And most important of all is a sense of constitutionalism – the notion that there are political rules that are to be followed, even against the partisan and personal interests of those with power.
Sometimes codification can make a marginal difference in the liberal direction – that because there is a portable instrument certain checks and balances are easier to point to and rely on.
But the difference is only marginal.
A written – that is, codified – constitution is never, by itself, a liberal and progressive panacea.
Just scroll down that Russian constitution, with its nice and attractive ideal provisions, and compare and contrast with reality.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
