The £15m Civil Recovery "Racket"

Originally posted at Liberal Conspiracy.
I was in the House of Commons Committee Room 9 earlier this week, listening to the 5th sitting of the Defamation Bill Committee (on behalf of English PEN and the Libel Reform Campaign). During the exchanges, Denis MacShane brought to light a case where the Citizens Advice Bureau and others have been threatened with libel action for discussing and criticising civil recovery schemes, specifically the practices of a company called Retail Loss Prevention.
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The SNP's Weak Cultural Case for Independence

Following Ed Miliband’s speech on national identity on Thursday, we were given a good look at the SNP’s communications strategy for their Independence campaign.
Responding to Miliband’s speech in a BBC interview, Humza Yousaf MSP likened ‘Britishness’ to ‘Scandanavian’ and asserted that an independent Scotland would still be British, by virtue of pure geography.
Later in the day, Alex Neil MSP made the same point on BBC Question Time. This is obviously disingenuous.
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Double Standards on Phone Hacking

A few quick comments on the unfolding phone hacking scandal, and what it says about the double-standards of our society and politics.
First, let us note that the images featured on the front pages of many newspapers yesterday were those of the most iconic cases of recent years. Sarah Payne, hollyandjessica, Millie Dowler, Madeline McCann: the news-stands appeared to be some macabre Abduction Hall of Fame. This is actually a dream come true for rivals of News of the World. It is the invasion of privacy of these families that the rival newspapers are keen to report, because they too know that it is images of these children that sell. And by pasting the famous images onto Page 1, I would say that they too are stepping, once more, into the grief of these families.
Meanwhile, black men and boys (the victims of inner-city stabbings that are far more common than the abduction of white school-girls) don’t seem to be mentioned in the reports. Is this because Glen Mulcaire and his News of the World handlers did not think the stories were sufficiently interesting? Or that today’s politicians and editors judge that an invasion of the privacy of (say) Damilola Taylor’s family would not sufficiently motivate the public, in a way that the Soham murders apparently do? Whichever explanation is closer to the truth, it says something unpleasant about our society and our media. It is ironic that, in expressing outrage at the practices of the tabloids, we fall back on the precisely those assumptions and values that we otherwise claim to despise.
A final note, also related to public opinion. In the chamber of the House of Commons yesterday, the Prime Minister made some throwaway comment about how the phone-hacking scandal was no longer “just about celebrities and politicians”. It is sometimes difficult to remember that both those groups are humans beings too! They deserve precisely the same protection from the law as the families of murdered schoolgirls. The Rule of Law is the Rule of Law. When it is broken, the Prime Minister’s outrage should not be contingent on who the victim is.


They’re discussing similar issues in the USA too.

Update II

Now cross-posted with comments at

Libel Reform is 190 Years Overdue

Happy Birthday to The Guardian, 190 years old today. In its regular archive feature, the paper presents Its first ever editorial, which features a demand for libel reform:

Nor is the career of the Editor of a Newspaper attended with moral responsibility alone, it is encompassed with dangers; dangers against which the best and purest intentions furnish a preservative. In the present state of the libel law, his duty to his country and himself will often be at variance. Circumstances may imperiously call for a prompt and fearless exposure of deliquency in high places. In the ardour of laudable indignation he may pass those “metes and bounds” which the discretion of the Attorney General assigns to the freedom of the press – he is not permitted either to prove the truth of his allegations, or to negative the averments of the charge against him. In short he is asked to defend himself, where the law (or at least the practice of the Courts) renders defence impossible – he is convicted, and banishment presents itself to his mind as the penalty of a second involuntary or even laudable transgression.
For ourselves, we are enemies to surrility and slander on either side, and though we will not compromise the right of making pointed animadversions on public questions, we hope to deliver them, as that even our political opponents shall admit the propriety of the spirit in which they are written.

Did lettered people really use the word animadversions in everyday discourse? (I promise to do so from now on.) Apart from the flowery nineteenth century language, these are sentiments that could be written today. In fact, a scrutiny committee is takings evidence in Parliament this week on the government’s draft defamation bill. I went to yesterday’s session, chaired by Lord Mahwinney, and the arguments put forward by the Libel Reform Campaign yesterday each find an analogous complaint in the Manchester Guardian’s editorial.
“Circumstances may imperiously call for a prompt and fearless exposure of delinquency” captures the need, still essential today, to firm up defences of public interest. “He is not permitted to prove the truth of his allegations” speaks to the long held complaint that truth is very often irrelevant in high-stakes libel cases (the draft bill has a very welcome clause to rectify this). The phrase about “banishment presents itself to his mind” pompously captures the terrible self-censorship that most publishers, journalists and bloggers routinely engage in when choosing to report on powerful people.
Even some of the critics of the current campaign find their words mirrored by the campaigners of 1821. Professors Alistair Mullis of UEA and Andrew Scott of The LSE also gave evidence to the scrutiny committee yesterday. Their claim is that the libel chill is purely a function of high costs. 190 years ago, The Manchester Guardian article rightly complained about “the practice of the courts”. The costly process by which libel cases are fought – always in the High Court, never in less expensive fora – is undoubtedly a major part of the problem… and has been for nearly two centuries!
I’m glad that the editorial does not neglect to mention a crucial message of the Libel Reform campaign – that reputation is important and responsible journalism must be encouraged. The Manchester Guardian writes this as “we are enemies to scurrility and slander”, which I like.
In one respect though, the short-sighted and unimaginative leader writers of 1821 failed miserably to predict future concerns, and that is with regards to protections for Internet Service Providers. Nowhere in that first editorial can I find an analogy for the “privatisation of censorship” that occurs when lawyers send takedown threats to ISPs hosting controversial content. Measures to protect ISPs from this kind of liability are also absent from the government’s draft bill – a curiously nineteenth century omission. I hope readers of Liberal Conspiracy will instinctively support the inclusion of such a clause into the defamation bill, ensuring that authors take responsibility for their content, not the distant ISPs that provide the server space. A good way to signal your support would be to write to your MP. The Libel Reform Campaign would be exceedingly beholden to those in our number that undertake to do so.

The cowardly fudge behind the rhetoric of Control Orders

I was at the Nick Clegg speech earlier today. He took aim at Labour’s pretty poor record on civil liberties, suggesting that the previous governments were more systematic and less casual than prominent ex-Ministers would have us believe. (Full text of the speech is here).
Although there were some fine words on Libel Reform and some interesting proposals on Freedom of Information, most of the discussion in the speech itself, and in questions afterwards, was on control orders and curfews. Clegg refused to outline how these might change, but did say that those who want to see them abolished completely “will be disappointed”.
There was one phrase that Clegg used which is particularly grating on the ears. This was when he said that there were people who ‘we know’ are planning atrocities, but we do not have the evidence to convict them. It stood out, because David Blunket had used precisely the same formulation during his pre-emptive retort on The Today Programme this morning, and I am sure the current and previous Home Secretaries have taken a similar line.
This line of argument sounds tough, plausible and savvy. The speaker gets to burnish his or her credentials as a realist. However, it is a stance that rests on very shaky moral ground. Control orders are a form of pre-emptive detention, and the argument which justifies them is exactly the same as those used by authoritarian governments around the world, when they detain their political opponents.
Moreover, it is a rude and obvious short-circuit of the very basic legal principles. If a Minister ‘knows’ that someone is a danger, then they should be charged and convicted. If there is not enough evidence to convict, then neither politicians, the police nor the general public get to use the word ‘know’ in their rhetoric. There simply is not the epistemological certainty for that kind of claim, especially not in the context of political arguments. A control order is an extreme form of accusation, and Deputy Prime Ministers and Home Secretaries must not be allowed to make such ‘accusations’ and leave them hanging.
As the Home Secretary conducts her review of control orders in the coming months, look out for examples of this rhetoric, “we know, but we cannot convict.” It is a half-formed argument, a question not an answer. It is a cowardly fudge for those who do not want to make the tough decision: do we let these suspects go, or do we allow phone-tapping evidence to be admissable in court? This is the issue at stake, and the phenomenon of control orders is simply a clever device for punting the decision. If Nick Clegg is really serious about restoring civil liberties to British citizens, then he and his Prime Minister need to stop using bad rhetoric, and start making tough choices.