Category: United Kingdom Law and Policy

A cabinet free to all – a side note on the “Non Dom” issue in UK politics

11th April 2022

How could it be allowed, I was asked, for someone with a Green Card and who was married to a Non Dom to be a member of the cabinet?

The answer I gave was that – in principle – anyone can sit in the cabinet and be a minister.

This is one of the examples of the flexibility of the constitution of the United Kingdom and its reliance on conventions.

There are some relevant limits – there is a limit on how many paid ministers there can be.

But this does not limit unpaid ministers – or which ministers are invited to attend cabinet.

And there are limits on how many ministers can be paid at each grade:

There is no requirement as to place of birth or nationality.

The former prime minister Andrew Bonar Law was from New Brunswick, which was in Canada by the time he was prime minister.

A more recent prime minister was born in the United States.

(Yes, him.)

And we have had at least two other prime ministers – including the Duke of Wellington – who were born outside the United Kingdom by reason of being born in Ireland before the Act of Union.

There is also no requirement as to usual residence.

In the second world war we had ministers such as Macmillan resident abroad.

And the South African politician Jan Smuts and other Empire ministers were members of a so-called imperial war cabinet in London in the first world war.

Nobody gave any of this a second thought.

Strictly speaking, you do not even have to be a member of parliament (or a lord) to be a minister.

Indeed, technically, ministers are not members of a parliament between the dissolution of an old one and the start of a new one.

(And so the ‘well actually’ answer to the quiz question as who was the last prime minister not to sit in the house of commons is neither Douglas Home nor Salisbury but Johnson in 2019.)

Under Thatcher, the then Solicitor-General for Scotland Peter Fraser once carried on in his office after losing his parliamentary seat in 1987 for two years before becoming a peer, as there were no other Scottish Tory MPs to take the job.

Of course, there is a practical problem of accountability – a minister cannot stand at the front bench unless he or she is a member of either house of parliament.

But in both the commons and the lords it is not unusual to have one minister answering on behalf of another – so not even this practical problem is insurmountable.

By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.

The ‘Right Honourable” title is sometimes even given to politicians as a consolation prize for not joining the cabinet.

So, in answer to the query mentioned at the start of the post: there is nothing formal stopping anyone being appointed a minister, even to the cabinet.

Even someone who were a Non Dom themselves.

Perhaps there should be formal restrictions: but as it happens, there are not.

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Cressida Dick’s criticism of the ‘politicisation of policing’ is really criticism of accountability for policing

8th April 2022

Every so often, and without irony, you will hear the phrase “treated like a political football”.

You will also hear, about some area of human activity, that “the politics should be taken out of” it  – say, health or social care or education.

There is something in such a proposition – and there are certain fundamental principles, especially about human autonomy and dignity, where there should not be politics.

For example, whether someone should be tortured or not should really not be a matter for political debate.

But.

Because it is such a nod-along phrase – the sort which will get people saying “of course” or even clap and cheer – then it is a phrase that will tend to be misused.

And it is often misused by those who do not want there to be accountability for their uses of state power.

The goal of many with state power is to be free from any practical accountability, just as it is the goal of many businesses to be free from competition.

To have a check and a balance – to have things contested – is not what many with state power want.

Sometimes such opposition to accountability is effected with laws and processes – for example the undermining of freedom of information.

Sometimes it is done linguistically – with phrases such “politicisation”.

And here we come to the departure today of Cressida Dick from Scotland Yard.

Dick is the best leader the Police Federation never had.

A shop steward, not a police commissioner – Dick confused the interests of the police with the interests of the public.

And so when public confidence was lost in her (shop) stewardship, she had to resign.

In her farewell letter, Dick criticises the “politicisation of policing”.

What Dick is really criticising is accountability for policing.

And if you make that change, the rest of her resignation letter makes a lot more sense.

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The authority of Jackie Weaver – and what the Handforth council reports now show

30th March 2022

And so this blog returns to the unhappy local council at Handforth.

(It is now a town council and no longer a parish council, which is a bit of a shame.)

You will recall the viral (but edited) video of that Zoom council meeting.

And you will recall the now-immortal exchange:

‘You have no authority here, Jackie Weaver, no authority at all!’

[Silence]

‘She’s just kicked him out.’

[…]

‘Read the standing orders, read them and understand them!’

*

A published analysis of the meeting concluded the following:

“on the face of the Standing Orders, Jackie Weaver did not seem to have the authority”

“Weaver did not have authority as ‘Proper Officer’”

“Weaver did not appear to have the formal power to exclude the disruptive councillors”

Those were, however, not the conclusions that were published and widely reported yesterday – but the conclusions of this blog at the time of the viral video.

That is what you can find when you – ahem – read the standing orders.

When you read them and understand them.

*

What has returned Handforth council to the news is that Cheshire East Council has now published (with redactions) six reports in respect of allegations of bullying.

These reports were requested in a freedom of information request – and although that request was refused – the refusal was on the basis that the reports would be published as part of a publication scheme.

And so yesterday was the day they were published – and they can be found here.

The reports are not pleasant reading – and they reveal an ugly culture of confrontation and bullying in local government that is perhaps not as widely known about as it should be.

In the reports there is – almost as an aside – a view taken as to whether Weaver did have the authority.

But that view is not the primary purpose of the reports – the reports are instead about the conduct of the councillors, and so it is interesting to see how this view on Weaver’s authority is taken in context:

That is quite a list of words for what Weaver faced: “aggressive… threatening… menacing… unnecessarily confrontational and disrespectful”.

The report avers: “Faced with what were unusual and difficult circumstances, and the deep-seated issues underpinning those circumstances, we can understand why [Weaver] acted as she did […]”

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My blogpost last year took a relaxed view of what Weaver did in the circumstances.

She did not have the (formal) authority – but in the remarkable and unfortunate practical situation she was placed in, where a meeting should be going ahead but some councillors wanted to make sure it did not, the conduct of some of those councillors seemed to mean there was little choice for Weaver at the time of the meeting.

This blog also averred last year that the action by Weaver to place councillors in the Zoom waiting room seemed to have been subsequently ratified and affirmed by other councillors, though the published reports don’t take a view on that.

Weaver maintains that the “jury was still out” on whether she was able to move the councillors to the waiting-room, and she is reported as saying the following:

“We were still very vague about how virtual council meetings worked and I did not actually remove them from the meeting, in my opinion, I moved them to the waiting room.

“A little later in the meeting the remaining councillors voted to remove them.

“So I welcome the findings of the report but am deeply saddened that it took so long and cost so much to get there.”

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The six published reports are not investigations into Weaver.

They are instead investigations into serious complaints in respect of others – in which a view is taken on whether she had the authority.

And, as this blog concluded at the time, Weaver did not have the authority.

But the reports show the wider problem.

The wider problem is that others were not acting within the rules.

It was an almost-impossible position for Weaver or anyone else in her position, and it is not obvious whether, in the circumstances, a less-bad route was practically available at that meeting so as to ensure that the meeting continued.

One of the reports even concluded that bullying took place at the meeting:

While another councillor was not found to have bullied at the meeting was also found to have breached the code by their conduct:

Not bullying – but “unnecessarily confrontational and disrespectful […] There was no need […] to make comments that sought to discredit and question [Weaver]’s experience and professional integrity.”

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Of course – it is understandable why the media are focusing on whether or not Weaver had the authority.

You cannot argue with a meme.

But that should be a starting-point, not a finishing-point.

The now-published reports indicate a troubling situation in local government: the confrontational, threatening and (in one case) bullying behaviour of councillors.

The lack of “authority” in all this is therefore a lot wider than any one person.

**

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Partygate returns – and a reminder about how this still matters in constitutional terms

29th March 2022

The ‘Partygate’ problem has come back for both the Prime Minister and those who work(ed) with him in Downing Street.

Perhaps he – and his political and media supporters – had hoped the fog of war in Ukraine would obscure this ongoing political crisis from view.

But: no.

It is here again – and in this latest stage there are fixed penalty notices for a number of Downing Street staff.

These – in effect – fines appear to be just the first round, and it may be that further penalties are issued.

There may even be one issued to the Prime Minister.

Currently Downing Street is maintaining that no rules were broken – even though these fixed penalty notices mean that the Metropolitan Police have reasonably concluded after investigation that offences have been committed.

Perhaps Johnson and his staffers want ‘their day in court’ before they accept any rules were broken.

This is all engrossing political drama – even political soap opera.

So it is important to not overlook why any of this really matters.

It matters for two reasons.

First, it is about legality.

Those in government are not above the law – and certainly not above the coercive restrictions that almost-casually imposed upon the rest of us during lock-down.

(By ‘casually’ I mean that the rules were imposed often without proper parliamentary debate or scrutiny and were often published at the last moment before taking effect.)

Second, it is about accountability.

The Prime Minister expressly told the House of Commons that rules were not broken and that he was unaware of the pandemic of partying in Downing Street.

On the face of it, it looks as if the Prime Minister was lying.

Of course, in the real world, politicians lie all the time.

But, taking such a cynical view at its highest, there should still be some adverse consequence to a Prime Minister misleading the democratic house of parliament.

‘Partygate’ is only incidentally about parties – the triviality of the circumstances co-exist with serious issues of legality and accountability.

And that is why it has not been obscured by the fog of war.

The problem of legality and accountability is still there, and it needs to be addressed.

And until and unless the problem is addressed, the problem will continue to de-stabilise British politics – because it is not really about partying at all.

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Good-bye to the Fixed-term Parliaments Act 2011 – which ‘enshrined’ fixed parliamentary terms in law, ho ho

24th March 2022

So farewell then, the Fixed-term Parliaments Act 2011.

You will be remembered, if at all, for two things.

First, that nobody could ever remember exactly the arrangement of lower-case letters, or the hyphen, or whether ‘term’ was plural, or whether ‘Parliaments’ was singular, in your title – at least without checking.

Second, that you were a singularly useless piece of legislation.

You were to ‘enshrine’ fixed-term parliaments ‘in law’.

Ho ho.

But you were circumvented in 2016, when it suited politicians.

And you were circumvented in 2019, when it suited politicians.

And you were going to be circumvented again and again whenever it suited politicians.

Yes, there may have been an indirect effect in that any circumvention of the Act was not that simple.

But circumventions were not that difficult either.

In the end, you turned out to be more of an ornament than an instrument.

And today you were repealed.

You have now gone the same way of so many other things that were once ‘enshrined in law’.

Ho ho.

Another exercise in fundamental constitutional reform that was not thought-through.

And now we are back – legally literally – to the legal and constitutional position we would have been in had you never been passed.

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A balancing exercise in action – Chris Mullin defeats a disclosure request in respect of the Birmingham pub bombings

23rd March 2022

I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.

There is a powerful public interest in that crime being properly investigated and those guilty being convicted.

Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.

There was a powerful public interest in that miscarriage of justice being exposed and corrected.

And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.

What happens when two powerful public interests such as the above collide?

That was the issue before the recorder of London at the Old Bailey.

On one hand, those police officers investigating the bombings want access to materials held by Mullin.

You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.

But that does not necessarily mean the police should get it.

The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.

Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.

And so the public interest in exposing that miscarriage of justice would have been defeated.

In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.

And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.

It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.

Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.

It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

*

SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

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But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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***

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Can the period of the current Ombudsman be lawfully extended?

18th March 2022

One of the areas of focus of this blog is what I call the ‘accountability gap’ – that is the lack of genuine accountability in the arrangements of United Kingdom government and public administration.

And one element of this accountability gap is the problem of the ‘Ombudsman’ – the Parliamentary Commissioner for Public Administration.

This is a strange and fairly obscure office and it exists to deal with what is – from a legal perspective – a strange and elusive thing: ‘maladministration’.

(My post on the obscurity of the office is here and my post on the vague concept of maladministration is here.)

It is also an office that is not without its critics – as this link demonstrates.

Part of the problem with the Ombudsman seems to me to be structural – the relevant legislation provides a strange mix of strong powers and a weak sense of purpose.

But some of the problem may be operational – that the PHSO (as it is now known) does not operate as well as it could do, even with its curious legal regime.

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The current Ombudsman has just had his term of office extended – and, as you can imagine, this has not been received well by the critics of the Ombudsman.

The extension is for a further period of two years, which will take his term in office to 2024.

One may doubt whether such an extension is wise – and the recent extension of office of the now-departing Metropolitan police commissioner comes to mind as an unwise extension of office.

I have been, however, asked to look at whether the extension is unlawful.

Here we need to look at section 1 of the Parliamentary Commissioner Act 1967:

We also need to look at last week’s press release:

Curiously there seems no trace on the website of the Cabinet Office of the confirmation, or on the website of the parliamentary committee of such a recommendation – but let us assume that the confirmation and recommendation both actually happened.

And by way of background, the current Ombudsman was appointed in April 2017, and was widely reported that the original appointment was for a five-year term (which must be correct, else there would be no need for an extension).

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So, looking at section 1, what can we ascertain?

Section 1(2A) provides that the Ombudsman is shall hold office until the end of the period for which he or she is appointed.

On the face of it, that would mean the current Ombudsman’s term comes to an end next month, for that was the position of the original appointment.

Section 1(3B) provides that a person cannot be ‘re-appointed’ as Ombudsman.

So if the extension was a re-appointment that would be unlawful under section 1(3B).

And section 1(2B) provides that the period of appointment shall not be no more than seven years in total.

That provision means that if the current Ombudsman served beyond April 2024 then that would certainly be unlawful.

What is not clear on the face of the legislation is what the legal position is if an office holder has an extension beyond his or her original appointment, as long as that extension does not mean more than seven years in total are served.

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In practical terms, it could be argued that by extending the appointment before it expired, then the appointment is simply continuing.

It can also be argued that section 1(2A) does not say or necessarily imply that that an Ombudsman cannot hold office after the period for which he or she is appointed – section 1(2A) only says that they must hold the office until the end of the appointment.

On balance, I think that although the position is not clear, the extension does not look to be unlawful.

Nothing in section 1 expressly prohibits such an extension.

Had section 1(2B) said that the period of appointment shall never be longer than the duration of the original appointment, then such an extension would be unlawful.

But section 1(2B) does not say that – it instead expressly states that the duration should not exceed seven years.

And because there is this express long-stop, I do not think a court would easily imply into the Act an even shorter long-stop as a matter of law.

I also do not think the court would see the extension as a ‘re-appointment’, as it is a continuation of an existing appointment and not the start of a fresh term of office.

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Public law is full of these situations where the legal position is not clear – and it may be that my analysis above is incorrect – and you are welcome to put forward your view below.

But the fact that the extension is (probably) legal does not necessarily mean that it is a good decision.

What may be a legal thing to do is not always the right thing to do.

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The Northern Irish protocol is both legal and constitutional – the significance of today’s appeal decision

14th March 2022

One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.

Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.

But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.

We do not yet have the full judgment, though we have this detailed summary.

The case was about the legality of the Northern Irish Protocol.

At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.

One ground was that the protocol was contrary to the Act of Union 1800.

Here part of the court’s summary reads as follows:

“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.

“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”

This is important.

Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.

But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.

And as such it would be wrong for a court to gainsay parliament.

In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.

And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.

The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.

The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.

And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.

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How you can be sued for libel for reporting things said in Parliament

10th March 2022

On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:

What Seely said is set out on the ‘They Work For You’ website:

And it has been published in Hansard:

What has struck many about what Seely said is that reporting parliamentary debates could be actionable under the law of defamation.

Surely, some thought, reporting what is said in parliament has absolute privilege – that is legal protection – from any law suit.

Well.

The legal position is not straightforward – though you may think it should be.

And the unsettling answer is that you can be sued for reporting things said in parliament.

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First there needs to be a distinction.

What MPs and peers themselves say in parliament does have absolute privilege.

This protection is provided by the Bill of Rights:

“`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.

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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 condition is the general effect of the august Parliamentary Papers Act 1840 and the Defamation Act 1996.)

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.

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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.

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There is the eternal question of what constitutes ‘malice’.

 

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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:

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.

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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.

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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.

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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.

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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.

(And to demonstrate my own personal lack of malice – this is a link to how Trafigura’s lawyer saw what happened.)

So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.

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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.

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