So it appears that the Conservative/Liberal Democrat talks have not so far yielded fruit. We were told this afternoon, after the days' talks had finished, what they have been discussing, but not whether the gap is unbridgeable.
William Hague said "We are agreed that a central part of any agreement that we make will be economic stability and the reduction of the budget deficit" apparently in an attempt to calm the markets, but it remains to be seen whether they will remain calmed once the main markets reopen tomorrow.
From that point of view, I am not convinced that there is a lot of time remaining. My view on Friday, which is here, was that the most likely outcome was a Liberal Democrat undertaking for the time being to vote with the Conservatives or abstain at the Queen's Speech and on budget/taxation matters, and I am a little surprised that the Liberal Democrats have not by now at least given some indication in that direction. If we do end up with another election in a few weeks' time, which seems the likely outcome were the Conservatives and the Liberal Democrats to fail to agree something, I suspect the Liberal Democrats will be significantly punished by the voters, as well as showing themselves as a party which prefers to bleat from the sidelines rather than to be taken seriously and accept the burdens of office.
Sunday, 9 May 2010
Friday, 7 May 2010
Gordon Brown doing the right thing
There is a disgraceful headline in tomorrow morning's Sun, with its "Squatter holed up in No 10".
It seems highly unlikely that Gordon Brown does not realise that it is all over for him, for the reasons I have given here. The best that can happen for him is another election in a few weeks' time at which he might get a better result, but he is probably exhausted and would prefer to avoid that as much as the other party leaders.
I am not a great admirer of Gordon Brown's policies nor his moral compass. Nonetheless it seems highly improbable that he thinks he can forge a lasting coalition which will keep him in power. Instead, he knows that someone needs to run the country until a new government can be formed by others or another election held next month, and he is the one the constitution requires to do it. He gave, in my view, a dignified address earlier today. Contrary to the Sun's headline, it is much more likely that, rather than attempting to stay in office until someone prizes him out and throws him overboard, he is sadly watching his ship list and settle in the water while remaining at his post, knowing that that is what he has to do and there is no way out.
It seems highly unlikely that Gordon Brown does not realise that it is all over for him, for the reasons I have given here. The best that can happen for him is another election in a few weeks' time at which he might get a better result, but he is probably exhausted and would prefer to avoid that as much as the other party leaders.
I am not a great admirer of Gordon Brown's policies nor his moral compass. Nonetheless it seems highly improbable that he thinks he can forge a lasting coalition which will keep him in power. Instead, he knows that someone needs to run the country until a new government can be formed by others or another election held next month, and he is the one the constitution requires to do it. He gave, in my view, a dignified address earlier today. Contrary to the Sun's headline, it is much more likely that, rather than attempting to stay in office until someone prizes him out and throws him overboard, he is sadly watching his ship list and settle in the water while remaining at his post, knowing that that is what he has to do and there is no way out.
The aftermath
What an intriguing election result; the most interesting result which it is possible to imagine. It looks as if the voters have, whether inadvertently or not, given a fine two fingers to the political class.
With the numbers now coming out, neither the Conservatives, nor a LibDem-Lab coalition, could actually achieve a majority government. This means that the only coalition game in town is a Conservative-LibDem coalition. My bet is that that won't happen, because the LibDem's price would be proportional representation in the Commons and the Conservatives are not prepared to offer it, and the LibDem's "triple-lock" would prevent a coalition on any other basis.
Gordon Brown could try to form a coalition of Labour, the Lib Dems, the DUP and/or the SNP and Plaid Cymru, but the bribes payable to the DUP/SNP/Plaid would probably be too high to be acceptable to voters in England, and even if not it would be so unstable as to be unworkable, particularly if the SNP and Plaid Cymru stick to their policy on not voting on England-only matters.
So my bet is a Conservative minority government with a LibDem undertaking for the time being to vote with them, or abstain, at the Queen's Speech and on budget/taxation matters. If the Conservatives are willing to offer the LibDems an elected House of Lords under proportional representation, which they probably are, that may keep it in place into next year, but probably not much beyond that.
If the LibDems are not prepared to agree even that, then the emerging make-up of the House of Commons would prevent any workable government being formed and we can look forward to another election in four weeks' time and a Gordon Brown "caretaker" administration in the meantime. The LibDems almost certainly don't want to take that risk: so big pressure on Nick Clegg.
With the numbers now coming out, neither the Conservatives, nor a LibDem-Lab coalition, could actually achieve a majority government. This means that the only coalition game in town is a Conservative-LibDem coalition. My bet is that that won't happen, because the LibDem's price would be proportional representation in the Commons and the Conservatives are not prepared to offer it, and the LibDem's "triple-lock" would prevent a coalition on any other basis.
Gordon Brown could try to form a coalition of Labour, the Lib Dems, the DUP and/or the SNP and Plaid Cymru, but the bribes payable to the DUP/SNP/Plaid would probably be too high to be acceptable to voters in England, and even if not it would be so unstable as to be unworkable, particularly if the SNP and Plaid Cymru stick to their policy on not voting on England-only matters.
So my bet is a Conservative minority government with a LibDem undertaking for the time being to vote with them, or abstain, at the Queen's Speech and on budget/taxation matters. If the Conservatives are willing to offer the LibDems an elected House of Lords under proportional representation, which they probably are, that may keep it in place into next year, but probably not much beyond that.
If the LibDems are not prepared to agree even that, then the emerging make-up of the House of Commons would prevent any workable government being formed and we can look forward to another election in four weeks' time and a Gordon Brown "caretaker" administration in the meantime. The LibDems almost certainly don't want to take that risk: so big pressure on Nick Clegg.
Saturday, 1 May 2010
The SNP and the BBC
On Wednesday the SNP lost their application to the Court of Session in Scotland for an interim interdict (what the law of Wales, England and Northern Ireland would call an interim injunction) precluding the showing by the BBC in Scotland of the final election debate on Thursday, in the absence of the leader of the SNP, Alex Salmond, being given the same right to appear as the Conservative, Liberal and Labour party leaders.
This was probably bound to fail, if in part because of jurisdictional and pragmatic reasons, and I am sure they knew this. They were really just making a point. The debates were in Manchester, and the Court of Session has no jurisdiction in respect of Manchester. The holding of the debate there would have been a matter for the High Court of England and Wales. An interdict precluding the showing of the debate from transmitting stations in Scotland would probably have been within jurisdiction, but fairly pointless given that it was also broadcast by Sky and was available over the internet.
One can understand the SNP's point. The Liberal Democrats have benefited greatly, and somewhat unexpectedly, from the three televised debates and there is every reason to believe that the SNP would pick up more votes in constituencies which are marginal for them had they been allowed to appear. There have been a number of newspaper articles about it, such as Magnus Linklater's "the BBC doesn't understand devolution" in the Times which in my view was lightly reasoned to the point of trivialising the issues. There have been similar articles in the Guardian of better quality. The purpose of this blog article is to invite consideration of the wider range of questions to which Mr Salmond's request for an appearance gives rise.
Contrary to what Magnus Linklater says, the BBC almost certainly do understand devolution, and spend considerably more time and trouble spelling out, in their news reports, the territorial extent of the political matters which they report than do most other organisations. They have become pretty rigorous in not conflating England on the one hand with Britain and the United Kingdom on the other (and vice versa), which is something the newspapers and the three main parties are less good at. In the case of the newspapers this is mainly from genuine ignorance, and in the case of the three main parties is from a desire to obfuscate. For the interested, compare the BBC's coverage of the three party manifestos, which did explain territorial extent, with the manifestos themselves (including that of Mr Linklater's wife's party, the Liberal Democrats) which largely did not.
Devolution and the television debates
The fact of the matter is that devolution has thrown up real dilemmas. The first televised debate covered matters which were largely devolved in Scotland, Wales and Northern Ireland, and during the debate the ITV presenter gamely made that point (frequently) and indicated that there would be separate leadership debates in those three countries on them, as indeed there were. However, discussion of devolved matters such as health, education and policing at the Scottish leader's debate which did take place subsequently would still have been irrelevant to this election, since Westminster and the UK Parliament do not govern those matters in Scotland. They will instead be for the Scottish elections which are to take place in 2011.
That did not stop the Scottish party leaders waffling on about those things in Scotland as if they were of relevance to the choice of their electors in the Westminster election. If the Scottish leaders had waffled on in their debate about their parties' policies for England on the NHS and education, that would have had more relevance, because pending a solution to the West Lothian Question Scottish MPs do exercise a decision making function on them, but for England and Wales only.
Most reasonable people would I think agree that it would have been absurd for Alex Salmond to have been present at the first televised debate which, as I have said, largely concerned policies affecting England or England and Wales only.
Should Alex Salmond have been allowed to participate in the second and third debates, which covered a number of matters not devolved, such as taxation, the deficit, defence, foreign affairs and immigration? The case for that is certainly stronger. But the fact of the matter is that these will be matters for the UK government, and the SNP are only fielding candidates in Scotland and therefore will be unable to form a government for the UK.
It must be acknowledged that in the event of a hung Parliament they may exercise some influence on these UK matters, but so will the DUP, the SDLP and Plaid Cymru, as will also the Greens and UKIP (should they obtain any seats) and Sinn Fein (in the unlikely event of them deciding to take up their seats). The remaining defining feature of the SNP is that they are in government in Scotland, albeit without a majority, but so are the DUP and Sinn Fein in Northern Ireland (who are in a coalition government which does have a majority) and Plaid Cymru in Wales (who are in a coalition government with Labour). Should the SNP be allowed to appear while in government, but not if they cease to be after the 2011 elections? If so, the proposition is that the elections for the Scottish Parliament will determine the right to appear in debates on elections for the Westminster Parliament, which has its own logical dilemmas; and this appearance would clearly have to be accompanied by an appearance also by the leaders of the DUP, Sinn Fein and Plaid Cymru (should they want it). The DUP, Sinn Fein and Plaid Cymru did not seem to appear on Mr Linklater's radar however.
There is simply no easy answer to this. The BBC's holding of separate debates for Scotland, Wales and Northern Ireland was a defensible one. Plainly however it will not satisfy some Scots, but it seems few things do.
This was probably bound to fail, if in part because of jurisdictional and pragmatic reasons, and I am sure they knew this. They were really just making a point. The debates were in Manchester, and the Court of Session has no jurisdiction in respect of Manchester. The holding of the debate there would have been a matter for the High Court of England and Wales. An interdict precluding the showing of the debate from transmitting stations in Scotland would probably have been within jurisdiction, but fairly pointless given that it was also broadcast by Sky and was available over the internet.
One can understand the SNP's point. The Liberal Democrats have benefited greatly, and somewhat unexpectedly, from the three televised debates and there is every reason to believe that the SNP would pick up more votes in constituencies which are marginal for them had they been allowed to appear. There have been a number of newspaper articles about it, such as Magnus Linklater's "the BBC doesn't understand devolution" in the Times which in my view was lightly reasoned to the point of trivialising the issues. There have been similar articles in the Guardian of better quality. The purpose of this blog article is to invite consideration of the wider range of questions to which Mr Salmond's request for an appearance gives rise.
Contrary to what Magnus Linklater says, the BBC almost certainly do understand devolution, and spend considerably more time and trouble spelling out, in their news reports, the territorial extent of the political matters which they report than do most other organisations. They have become pretty rigorous in not conflating England on the one hand with Britain and the United Kingdom on the other (and vice versa), which is something the newspapers and the three main parties are less good at. In the case of the newspapers this is mainly from genuine ignorance, and in the case of the three main parties is from a desire to obfuscate. For the interested, compare the BBC's coverage of the three party manifestos, which did explain territorial extent, with the manifestos themselves (including that of Mr Linklater's wife's party, the Liberal Democrats) which largely did not.
Devolution and the television debates
The fact of the matter is that devolution has thrown up real dilemmas. The first televised debate covered matters which were largely devolved in Scotland, Wales and Northern Ireland, and during the debate the ITV presenter gamely made that point (frequently) and indicated that there would be separate leadership debates in those three countries on them, as indeed there were. However, discussion of devolved matters such as health, education and policing at the Scottish leader's debate which did take place subsequently would still have been irrelevant to this election, since Westminster and the UK Parliament do not govern those matters in Scotland. They will instead be for the Scottish elections which are to take place in 2011.
That did not stop the Scottish party leaders waffling on about those things in Scotland as if they were of relevance to the choice of their electors in the Westminster election. If the Scottish leaders had waffled on in their debate about their parties' policies for England on the NHS and education, that would have had more relevance, because pending a solution to the West Lothian Question Scottish MPs do exercise a decision making function on them, but for England and Wales only.
Most reasonable people would I think agree that it would have been absurd for Alex Salmond to have been present at the first televised debate which, as I have said, largely concerned policies affecting England or England and Wales only.
Should Alex Salmond have been allowed to participate in the second and third debates, which covered a number of matters not devolved, such as taxation, the deficit, defence, foreign affairs and immigration? The case for that is certainly stronger. But the fact of the matter is that these will be matters for the UK government, and the SNP are only fielding candidates in Scotland and therefore will be unable to form a government for the UK.
It must be acknowledged that in the event of a hung Parliament they may exercise some influence on these UK matters, but so will the DUP, the SDLP and Plaid Cymru, as will also the Greens and UKIP (should they obtain any seats) and Sinn Fein (in the unlikely event of them deciding to take up their seats). The remaining defining feature of the SNP is that they are in government in Scotland, albeit without a majority, but so are the DUP and Sinn Fein in Northern Ireland (who are in a coalition government which does have a majority) and Plaid Cymru in Wales (who are in a coalition government with Labour). Should the SNP be allowed to appear while in government, but not if they cease to be after the 2011 elections? If so, the proposition is that the elections for the Scottish Parliament will determine the right to appear in debates on elections for the Westminster Parliament, which has its own logical dilemmas; and this appearance would clearly have to be accompanied by an appearance also by the leaders of the DUP, Sinn Fein and Plaid Cymru (should they want it). The DUP, Sinn Fein and Plaid Cymru did not seem to appear on Mr Linklater's radar however.
There is simply no easy answer to this. The BBC's holding of separate debates for Scotland, Wales and Northern Ireland was a defensible one. Plainly however it will not satisfy some Scots, but it seems few things do.
Wednesday, 28 April 2010
In the thick of it
Todays events in Rochdale speak for themselves.
Rather than what the Prime Minister said about a lifelong Labour supporter, after he had concluded his discussion with that supporter on returning to the supposed privacy of his chauffeur driven car, it was the Prime Minister's immediate desire to blame his assistants which most interested me: "They should never have put me with that woman, whose idea was that? It's XXX I think. It's just ridiculous".
This jives with the complaints about the Prime Minister's behaviour towards his employees and in the office, and indeed with the Damien McBride affair. Also of interest was the subsequent apology which just had to try to hold something back so it wasn't really a full-blooded apology, with the "I misunderstood what she said" as its preface.
Given that this was just an average election encounter with a voter with pretty everyday concerns, which the Prime Minister appeared to handle well, it is difficult to see why he felt so aggrieved by his assistants having caused him to meet the lady concerned. It is obvious that he can't handle ordinary public interaction. In other words, he may (or may not) be OK as a-behind-the-scenes Treasury technocrat-minister, but he should not be the leader of a government. Surely his fate is now sealed within the Labour party, even if the electorate don't give a majority to someone else.
This is a real life enactment of one of the cock-up scenes in "In the Thick of It": except that the producers of that series would have felt that while people might believe a junior Minister in the Department of Backwaters and Other Establishments might have gaffed like this, no one would have thought it credible if they were to portray the Prime Minister as having done so.
No wonder Peter Mandelson's strategy was to keep a distance between the Prime Minister and the public. This strategy was relaxed to try to get Labour above the Liberal Democrats in the polls, with appalling consequences for them. However, I still fancy them to finish above the Liberal Democrats in votes in the end (no one would think they would finish behind on seats, even with this gaffe).
Rather than what the Prime Minister said about a lifelong Labour supporter, after he had concluded his discussion with that supporter on returning to the supposed privacy of his chauffeur driven car, it was the Prime Minister's immediate desire to blame his assistants which most interested me: "They should never have put me with that woman, whose idea was that? It's XXX I think. It's just ridiculous".
This jives with the complaints about the Prime Minister's behaviour towards his employees and in the office, and indeed with the Damien McBride affair. Also of interest was the subsequent apology which just had to try to hold something back so it wasn't really a full-blooded apology, with the "I misunderstood what she said" as its preface.
Given that this was just an average election encounter with a voter with pretty everyday concerns, which the Prime Minister appeared to handle well, it is difficult to see why he felt so aggrieved by his assistants having caused him to meet the lady concerned. It is obvious that he can't handle ordinary public interaction. In other words, he may (or may not) be OK as a-behind-the-scenes Treasury technocrat-minister, but he should not be the leader of a government. Surely his fate is now sealed within the Labour party, even if the electorate don't give a majority to someone else.
This is a real life enactment of one of the cock-up scenes in "In the Thick of It": except that the producers of that series would have felt that while people might believe a junior Minister in the Department of Backwaters and Other Establishments might have gaffed like this, no one would have thought it credible if they were to portray the Prime Minister as having done so.
No wonder Peter Mandelson's strategy was to keep a distance between the Prime Minister and the public. This strategy was relaxed to try to get Labour above the Liberal Democrats in the polls, with appalling consequences for them. However, I still fancy them to finish above the Liberal Democrats in votes in the end (no one would think they would finish behind on seats, even with this gaffe).
Friday, 16 April 2010
The perils of political debate
The BBC reports that a man from Gloucestershire has been jailed for breaching an ASBO after making too much noise as a result of getting too angry when watching programmes such as Question Time.
If he was in jail last night, as it appears he probably was, the judge may have done him a favour. He might have injured himself from apoplexy had he watched last night's pre-prepared and on-message "debating". This man needs a defence fund.
If he was in jail last night, as it appears he probably was, the judge may have done him a favour. He might have injured himself from apoplexy had he watched last night's pre-prepared and on-message "debating". This man needs a defence fund.
More on the West Lothian Question
Victor Bogdanor, Professor of Government at Oxford University, has been opining again, this time in an article in today's Times, mainly centering on what he thinks will be a Liberal Democrat break-through in the election in May. Certainly Nick Clegg seems to have done quite well in yesterday's TV debate and it does make the election an intriguing one. Professor Bogdanor's main thesis in the article is (and has been in the past) that proportional representation in the House of Commons is the way to go.
At the same time, he has taken another opportunity to take a swipe at the Conservative party's policy on the West Lothian Question which now features in their manifesto, namely to have an English Grand Committee for domestic legislation, such as on health, education and local government, which only applies to England or to England and Wales.
He says this about the manifesto:
First, the Tory policy is for an English Grand Committee, not "in short, English votes on English laws". Under the Tory policy no Bill applying only to England or England and Wales could pass its second and third reading stages without a majority of all members of the House of Commons, including Scottish and Northern Irish members. If Scottish members don't like a particular proposal, they can vote to block it.
Secondly, were there to be a cut in education spending in England, it does not mean the Scottish government would have to do the same to its education expenditure, as expenditure is not hypothecated in this way. The block grant paid into the Scottish Consolidated Fund is calculated globally by reference to all expenditure on matters in England which are devolved in Scotland. Were the Scottish block grant to be reduced because of cuts in expenditure in England on education, the Scottish government could choose to maintain education spending at the expense of something else: but in fact Scottish block grant would not be cut at all unless a cut in the English budget for education were to be used either to fund UK-wide expenditure (for example, defence and foreign affairs) or were to be used to cut general taxation. Were it to be used to cut general taxation, the Scottish Government could decide to maintain levels of taxation in Scotland by exercising its right to raise income tax by up to 3p in the pound (which the Scottish Parliament already has the power to do and does not rely on Calman), so providing the revenue which they would otherwise lose by the UK tax cut.
Thirdly, as I have previously mentioned, service legislation on, say, education would only very rarely have a direct effect on spending. It is the annual expenditure votes for the services concerned which determine that, on which all members of the House of Commons can and do vote. (For more information on how so-called supply works, see this.)
Lastly, both the Conservative and Liberal Democrat parties now have proposals to replace the Barnett formula with a needs based formula. Were that to be done, the argument (poor as in my view it was to begin with when examined critically) falls flat on its face.
At the same time, he has taken another opportunity to take a swipe at the Conservative party's policy on the West Lothian Question which now features in their manifesto, namely to have an English Grand Committee for domestic legislation, such as on health, education and local government, which only applies to England or to England and Wales.
He says this about the manifesto:
"'A Conservative Government', the manifesto declares, 'will introduce new rules so that legislation referring specifically to England, or to England and Wales, cannot be enacted without the consent of MPs representing constituencies of those countries' — in short, English votes for English laws.This is the "Barnett consequential" argument. The trouble is that, as I have mentioned before, this analysis is wrong. It as if, by repeating it often enough, it becomes right.
"The trouble is, however, that any issue at Westminster involving the expenditure of public money is of concern to Scotland, since it may affect the level of taxation in Scotland and also, indirectly, the level of Scottish public expenditure. Scotland is financed through a block fund, the size of which depends, through the Barnett formula, on expenditure in England.
"Were a Conservative government to cut expenditure in a devolved area such as, for example, education, there would be a knock-on effect north of the Border. The Scots would have to cut their own expenditure on education, whether they wished to or not. It is for this reason that MPs from the devolved areas currently retain the right to vote on what might seem to be merely English domestic affairs."
First, the Tory policy is for an English Grand Committee, not "in short, English votes on English laws". Under the Tory policy no Bill applying only to England or England and Wales could pass its second and third reading stages without a majority of all members of the House of Commons, including Scottish and Northern Irish members. If Scottish members don't like a particular proposal, they can vote to block it.
Secondly, were there to be a cut in education spending in England, it does not mean the Scottish government would have to do the same to its education expenditure, as expenditure is not hypothecated in this way. The block grant paid into the Scottish Consolidated Fund is calculated globally by reference to all expenditure on matters in England which are devolved in Scotland. Were the Scottish block grant to be reduced because of cuts in expenditure in England on education, the Scottish government could choose to maintain education spending at the expense of something else: but in fact Scottish block grant would not be cut at all unless a cut in the English budget for education were to be used either to fund UK-wide expenditure (for example, defence and foreign affairs) or were to be used to cut general taxation. Were it to be used to cut general taxation, the Scottish Government could decide to maintain levels of taxation in Scotland by exercising its right to raise income tax by up to 3p in the pound (which the Scottish Parliament already has the power to do and does not rely on Calman), so providing the revenue which they would otherwise lose by the UK tax cut.
Thirdly, as I have previously mentioned, service legislation on, say, education would only very rarely have a direct effect on spending. It is the annual expenditure votes for the services concerned which determine that, on which all members of the House of Commons can and do vote. (For more information on how so-called supply works, see this.)
Lastly, both the Conservative and Liberal Democrat parties now have proposals to replace the Barnett formula with a needs based formula. Were that to be done, the argument (poor as in my view it was to begin with when examined critically) falls flat on its face.
Saturday, 3 April 2010
Simon says: fair comment
The Court of Appeal gave judgment on the Simon Singh defamation appeal on Thursday, just before the Easter break, a judgment given by the strongest bench that the Court of Appeal could muster (leaving out of account the excellent Lord Justice Laws1, who gave leave to appeal). The fact that such a strong bench sat on the appeal shows the importance which the court attached to the case, not surprisingly and rightly given the furore that the decision of Mr Justice Eady at first instance has caused. Eady J's decision was a ruling on a preliminary matter in defamation proceedings brought by the British Chiropractic Association against Dr Singh. The preliminary matter concerned the scope of the meaning of the defamatory words concerned and whether they comprised a statement of opinion to which the defence of fair comment could be pleaded or whether they comprised a statement of fact which would (if defamatory) require to be proved as true for Dr Singh to avoid a finding against him.
The Court of Appeal's judgment can be found here. It sets out the relevant parts of the Guardian article penned by Dr Singh as follows:
The defamatory words comprised Dr Singh's claim that the BCA "happily" promote "bogus" treatments. Mr Justice Eady held these words comprise an allegation of fact that the BCA promote false and ineffective treatments knowing them to be false and ineffective, something which would be very difficult for Dr Singh to prove, not least because it is most probably not true: the BCA are no doubt honest even if they may or may not be misguided. This ruling of Eady J was despite the second paragraph cited above from the Court of Appeal's judgment in which Dr Singh gave his reasons to support his statement, which it is not even clear that Eady took into account.
To see the relevance of that second paragraph, it is necessary to understand that in order for a defendant to succeed in the defence of fair comment, he or she must show that the defamatory words comprise a statement of opinion about a matter of public interest which is within the range of opinion that a reasonable and fair-minded person could hold, on the basis of stated facts which can be shown to be true, or sufficiently true to support the opinion stated. If the factual basis for the opinion is not stated, or the statement of opinion is so mixed in with statements of fact as to make it unclear to the ordinary reader that the defamatory words are mere opinion, then the defence fails and the defendant has to prove the truth of the statement(s) to avoid liability. For example, to say in the presence of others "I think X is a thief" without anything else is treated in law as a defamatory statement of fact that the person is a thief. To say "I think X is a thief because I saw him entering Mrs Jones's house by breaking a window, and leaving 5 minutes later with a bag marked 'Swag'" is a statement of opinion in relation to the characterisation of X as being a thief, for which a defence is available if it is true that the defamer saw the things which he said he saw and the comment was about a matter of public interest.
One instinctively thinks the statement complained of by the BCA isn't the kind of thing the law of defamation was intended to deal with. It is a matter of epidemiology and of public health interest which it is to be hoped could be openly discussed in an open society, albeit in this case expressed in colourful language. The Court of Appeal so held and determined that on matters of scientific or medical controversy a statement of opinion can remain a matter of opinion even if not very obviously accompanied by statements of claimed fact to support them. To that extent, the court could be said to have extended the range of things that will be considered to be statements of opinion rather than fact for the purposes of the fair comment defence.
I have three supplementary points on this case. The first (which lawyers will be interested in) is why Dr Singh did not also plead the Reynolds defence of responsible journalism. This defence relies on a different branch of the law of defamation, namely qualified privilege: it may be that it was not pleaded because before the article was published the Guardian did not seek the BCA's views, therefore not meeting Lord Nichol's indicative tests set out in the Reynolds case. However, the Court of Appeal's judgment seems to be part of a slow merger of the defences of fair comment and qualified privilege, which is likely to occur over the coming decades.
Secondly, this case will probably go down as a textbook example of when not to sue. The BCA can only come out of this with nominal damages even if they do win, which now looks difficult for them. They will portray themselves as bullies attempting to stifle dissent by penalising Dr Singh with costs, particularly as, as the Court of Appeal observed "By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics". Furthermore, this litigation will serve to bring Dr Singh's allegations about chiropractic's effectiveness in the areas he mentioned to public attention. People will think "If they had to try to nip this in the bud, there must be something in it". In short, the decision of the BCA to bring this case is one of lunacy when viewed in the wider picture. The BCA say they are considering applying for leave to appeal to the Supreme Court. Now he has got a national platform, Dr Singh may be thinking along Dirty Harry lines: "Go on punks, make my day".
Thirdly, one must question the way in which Mr Justice Eady held (or failed to hold) the balance between the right of the individual to reputation and privacy on the one hand (article 8 of the European Convention on Human Rights) and the right to freedom of expression on the other (article 10 of the ECHR) in this case. As I commented here, he has been the subject of some mainly unjustified attacks in the press, but on this occasion he simply went too far with an astonishingly illiberal decision at first instance.
_________________________
1 By a twist of fate, it was Laws LJ who in an earlier incarnation, as junior Treasury Counsel, acted for the government in trying to suppress publication of Peter Wright's Spycatcher book in Australia. I suspect he knew he was going to lose in a set of very difficult and trying circumstances, but no doubt it was a rounding-out experience.
The Court of Appeal's judgment can be found here. It sets out the relevant parts of the Guardian article penned by Dr Singh as follows:
"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.The British Chiropractic Association sued Dr Singh for defamation over this. As a company limited by guarantee they were able to do so since limited companies have a notional reputation in law which is protected by the law of defamation. Dr Singh pleaded the defence of fair comment.
"I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions"
The defamatory words comprised Dr Singh's claim that the BCA "happily" promote "bogus" treatments. Mr Justice Eady held these words comprise an allegation of fact that the BCA promote false and ineffective treatments knowing them to be false and ineffective, something which would be very difficult for Dr Singh to prove, not least because it is most probably not true: the BCA are no doubt honest even if they may or may not be misguided. This ruling of Eady J was despite the second paragraph cited above from the Court of Appeal's judgment in which Dr Singh gave his reasons to support his statement, which it is not even clear that Eady took into account.
To see the relevance of that second paragraph, it is necessary to understand that in order for a defendant to succeed in the defence of fair comment, he or she must show that the defamatory words comprise a statement of opinion about a matter of public interest which is within the range of opinion that a reasonable and fair-minded person could hold, on the basis of stated facts which can be shown to be true, or sufficiently true to support the opinion stated. If the factual basis for the opinion is not stated, or the statement of opinion is so mixed in with statements of fact as to make it unclear to the ordinary reader that the defamatory words are mere opinion, then the defence fails and the defendant has to prove the truth of the statement(s) to avoid liability. For example, to say in the presence of others "I think X is a thief" without anything else is treated in law as a defamatory statement of fact that the person is a thief. To say "I think X is a thief because I saw him entering Mrs Jones's house by breaking a window, and leaving 5 minutes later with a bag marked 'Swag'" is a statement of opinion in relation to the characterisation of X as being a thief, for which a defence is available if it is true that the defamer saw the things which he said he saw and the comment was about a matter of public interest.
One instinctively thinks the statement complained of by the BCA isn't the kind of thing the law of defamation was intended to deal with. It is a matter of epidemiology and of public health interest which it is to be hoped could be openly discussed in an open society, albeit in this case expressed in colourful language. The Court of Appeal so held and determined that on matters of scientific or medical controversy a statement of opinion can remain a matter of opinion even if not very obviously accompanied by statements of claimed fact to support them. To that extent, the court could be said to have extended the range of things that will be considered to be statements of opinion rather than fact for the purposes of the fair comment defence.
I have three supplementary points on this case. The first (which lawyers will be interested in) is why Dr Singh did not also plead the Reynolds defence of responsible journalism. This defence relies on a different branch of the law of defamation, namely qualified privilege: it may be that it was not pleaded because before the article was published the Guardian did not seek the BCA's views, therefore not meeting Lord Nichol's indicative tests set out in the Reynolds case. However, the Court of Appeal's judgment seems to be part of a slow merger of the defences of fair comment and qualified privilege, which is likely to occur over the coming decades.
Secondly, this case will probably go down as a textbook example of when not to sue. The BCA can only come out of this with nominal damages even if they do win, which now looks difficult for them. They will portray themselves as bullies attempting to stifle dissent by penalising Dr Singh with costs, particularly as, as the Court of Appeal observed "By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics". Furthermore, this litigation will serve to bring Dr Singh's allegations about chiropractic's effectiveness in the areas he mentioned to public attention. People will think "If they had to try to nip this in the bud, there must be something in it". In short, the decision of the BCA to bring this case is one of lunacy when viewed in the wider picture. The BCA say they are considering applying for leave to appeal to the Supreme Court. Now he has got a national platform, Dr Singh may be thinking along Dirty Harry lines: "Go on punks, make my day".
Thirdly, one must question the way in which Mr Justice Eady held (or failed to hold) the balance between the right of the individual to reputation and privacy on the one hand (article 8 of the European Convention on Human Rights) and the right to freedom of expression on the other (article 10 of the ECHR) in this case. As I commented here, he has been the subject of some mainly unjustified attacks in the press, but on this occasion he simply went too far with an astonishingly illiberal decision at first instance.
_________________________
1 By a twist of fate, it was Laws LJ who in an earlier incarnation, as junior Treasury Counsel, acted for the government in trying to suppress publication of Peter Wright's Spycatcher book in Australia. I suspect he knew he was going to lose in a set of very difficult and trying circumstances, but no doubt it was a rounding-out experience.
Sunday, 28 February 2010
Constitutional Futures
I contributed a guest article about Constitutional Futures to the http://englishparliament.net website here. It does not contain much that I have not previously commented on in this blog, but it contains a more complete refutation of the views of Professor Victor Bogdanor for those who would like to read it.
Saturday, 27 February 2010
Watching the International Intellectual Property Alliance and the US Trade Representative
The International Intellectual Property Alliance is a trade organisation or lobby group of seven trade associations which represent US companies involved in businesses having a high intellectual property (principally copyright) content, such as US film and recorded music producers and sellers, computer software sellers and US companies involved in books and other similar publications.
Watch lists
Despite its name the IIPA is not "international", but a United States lobby group promoting the interests of the US corporations involved in the things I have mentioned. It is an influential one however: it makes recommendations to the Office of the US Trade Representative about how that Office should exercise its functions under section 182 of the Trade Act 1974 (19 USC §2242). Under that section, the Office maintains a "watch list" of "those foreign countries that (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable market access to United States persons who rely on intellectual property protection".
Under the section there is a sub-category of countries called "priority foreign countries", that have "the most onerous or egregious acts, policies, or practices" denying adequate protection or access as mentioned. In addition to such egregiousness, to go on the priority list rather than the ordinary watch list it is necessary that these acts, policies, or practices "have the greatest adverse impact (actual or potential) on the relevant United States products", and that the countries concerned "are not (i) entering into good faith negotiations, or (ii) making significant progress in bilateral or multilateral negotiations, to provide adequate and effective protection of intellectual property rights".
Being on the watch list does not of itself automatically give rise to further sanctions (say in access to US markets) but it is used by the US government in international trade discussions to obtain leverage. It might perhaps unkindly be described as a "bullying list": those countries which the US government can, with supposed legitimacy, beat around a bit. However, a surprising group of countries are on this list, including Canada, ostensibly for failing to take enough action to curb internet piracy.
Actually I don't have a problem with issuing black marks for internet piracy (although the Canadian government consider that its inclusion is based on emotion and US lobbying rather than objective fact). However, the IIPA and the Office of the US Trade Representative have been expanding their activities to try to dissuade foreign governments from encouraging the use of perfectly legitimate and legal "open source" software in preference to software developed by "closed source" methods. The main US producer of closed source software is the Microsoft Corporation (although of course there are many other smaller or more specialist producers as well), and readers reading this probably have a Microsoft operating system on their computers.
In short, the IIPA and the Trade Representative are becoming lobby organisations to press other countries to buy US software products rather than to protect intellectual property as such.
Open source software
Open source software is computer software the source code for which is made freely available, subject often to restrictions such that for example any modifications of the code to extend its usefulness must also made available by the user/modifier: such restrictions form in effect a contract or licence under which "you can use my code for free provided you pass back any improvements you make to it for free". The "source code" comprises the computer code which is to be executed by the software program in question, in pre-compiled human-readable form.
Open source software is becoming increasingly important particularly in business uses: it is widely used in banks for example. It can comprise whole operating systems, such as Linux or BSD systems, or it can comprise particular programs such as the Firefox web browser (either running on an open source operating system, or on a closed source operating system such as Windows).
To see the way things are moving in terms of US-led lobbying on the issue, it is instructive to see the IIPA's latest proposal for the addition of Indonesia to the priority watch list, that is the list of those acting most egregiously contrary to US intellectual property interests. It proposes such inclusion in part because "in March 2009, the Ministry of Administrative Reform (MenPAN) issued Circular Letter No. 1 of 2009 to all central and provincial government offices including State-owned enterprises, endorsing the use and adoption of open source software within government organizations. While the government issued this circular in part with the stated goal to 'reduc[e] software copyright violation[s],' in fact, by denying technology choice, the measure will create additional trade barriers and deny fair and equitable market access to software companies." The IIPA want the Indonesian government to "rescind March 2009 MenPAN circular letter endorsing the use and adoption of open source software which threatens to create additional trade barriers and deny fair and equitable market access to software companies".
What the circular in question from the Indonesian government did was to recommend the use of open source software to government institutions but did not deny choice by mandating it, and it did so partly to reduce the government's software costs. It is difficult to believe that this could be regarded as an anti-competitive act at all. It must be reasonable, in deciding whether to adopt a (free) open source software product rather than a closed source (payment required) product produced by a US company, to take into account the fact that one is free and one is not. If the IIPA is of the view that that is not the case then it must surely be taking the task of protecting its members' interests too far. If however what the IIPA means is that the policy circular does not contain an adequate metric for assessing cost against, say, usability to enable a proper and fair comparison to be made in particular cases, then it is surely arguing about a minor point of implementation and choices of words, rather than something meeting the level of egregiousness necessary to be placed on the priority list by the Office of the US Trade Representative.
As it happens open source software has a number of advantages other than cost, such as the ability to inspect and audit the source code to make sure it does not contain any security weaknesses, or indeed any deliberately inserted code which "rings home to Mama". That can be important for security-sensitive uses. It should also be noted that a number of large US corporations now deal in open source software, mainly obtaining their revenue from it in providing consultancy, implementation and support services for it or in providing "bundled" distributions of such software. Such corporations include IBM. Google uses the open source Linux operating system as the underlying layer for its internet services, and obtains its revenue principally from advertising.
Possibly the IIPA and the Office of the US Trade Representative want to get their bullying in while they still can. The rise of China, India, Brazil and similar countries will make the US view on such matters less relevant as time passes. The problem with making enemies on the way up, though, is that people tend to kick you harder when you are on the way down.
Watch lists
Despite its name the IIPA is not "international", but a United States lobby group promoting the interests of the US corporations involved in the things I have mentioned. It is an influential one however: it makes recommendations to the Office of the US Trade Representative about how that Office should exercise its functions under section 182 of the Trade Act 1974 (19 USC §2242). Under that section, the Office maintains a "watch list" of "those foreign countries that (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable market access to United States persons who rely on intellectual property protection".
Under the section there is a sub-category of countries called "priority foreign countries", that have "the most onerous or egregious acts, policies, or practices" denying adequate protection or access as mentioned. In addition to such egregiousness, to go on the priority list rather than the ordinary watch list it is necessary that these acts, policies, or practices "have the greatest adverse impact (actual or potential) on the relevant United States products", and that the countries concerned "are not (i) entering into good faith negotiations, or (ii) making significant progress in bilateral or multilateral negotiations, to provide adequate and effective protection of intellectual property rights".
Being on the watch list does not of itself automatically give rise to further sanctions (say in access to US markets) but it is used by the US government in international trade discussions to obtain leverage. It might perhaps unkindly be described as a "bullying list": those countries which the US government can, with supposed legitimacy, beat around a bit. However, a surprising group of countries are on this list, including Canada, ostensibly for failing to take enough action to curb internet piracy.
Actually I don't have a problem with issuing black marks for internet piracy (although the Canadian government consider that its inclusion is based on emotion and US lobbying rather than objective fact). However, the IIPA and the Office of the US Trade Representative have been expanding their activities to try to dissuade foreign governments from encouraging the use of perfectly legitimate and legal "open source" software in preference to software developed by "closed source" methods. The main US producer of closed source software is the Microsoft Corporation (although of course there are many other smaller or more specialist producers as well), and readers reading this probably have a Microsoft operating system on their computers.
In short, the IIPA and the Trade Representative are becoming lobby organisations to press other countries to buy US software products rather than to protect intellectual property as such.
Open source software
Open source software is computer software the source code for which is made freely available, subject often to restrictions such that for example any modifications of the code to extend its usefulness must also made available by the user/modifier: such restrictions form in effect a contract or licence under which "you can use my code for free provided you pass back any improvements you make to it for free". The "source code" comprises the computer code which is to be executed by the software program in question, in pre-compiled human-readable form.
Open source software is becoming increasingly important particularly in business uses: it is widely used in banks for example. It can comprise whole operating systems, such as Linux or BSD systems, or it can comprise particular programs such as the Firefox web browser (either running on an open source operating system, or on a closed source operating system such as Windows).
To see the way things are moving in terms of US-led lobbying on the issue, it is instructive to see the IIPA's latest proposal for the addition of Indonesia to the priority watch list, that is the list of those acting most egregiously contrary to US intellectual property interests. It proposes such inclusion in part because "in March 2009, the Ministry of Administrative Reform (MenPAN) issued Circular Letter No. 1 of 2009 to all central and provincial government offices including State-owned enterprises, endorsing the use and adoption of open source software within government organizations. While the government issued this circular in part with the stated goal to 'reduc[e] software copyright violation[s],' in fact, by denying technology choice, the measure will create additional trade barriers and deny fair and equitable market access to software companies." The IIPA want the Indonesian government to "rescind March 2009 MenPAN circular letter endorsing the use and adoption of open source software which threatens to create additional trade barriers and deny fair and equitable market access to software companies".
What the circular in question from the Indonesian government did was to recommend the use of open source software to government institutions but did not deny choice by mandating it, and it did so partly to reduce the government's software costs. It is difficult to believe that this could be regarded as an anti-competitive act at all. It must be reasonable, in deciding whether to adopt a (free) open source software product rather than a closed source (payment required) product produced by a US company, to take into account the fact that one is free and one is not. If the IIPA is of the view that that is not the case then it must surely be taking the task of protecting its members' interests too far. If however what the IIPA means is that the policy circular does not contain an adequate metric for assessing cost against, say, usability to enable a proper and fair comparison to be made in particular cases, then it is surely arguing about a minor point of implementation and choices of words, rather than something meeting the level of egregiousness necessary to be placed on the priority list by the Office of the US Trade Representative.
As it happens open source software has a number of advantages other than cost, such as the ability to inspect and audit the source code to make sure it does not contain any security weaknesses, or indeed any deliberately inserted code which "rings home to Mama". That can be important for security-sensitive uses. It should also be noted that a number of large US corporations now deal in open source software, mainly obtaining their revenue from it in providing consultancy, implementation and support services for it or in providing "bundled" distributions of such software. Such corporations include IBM. Google uses the open source Linux operating system as the underlying layer for its internet services, and obtains its revenue principally from advertising.
Possibly the IIPA and the Office of the US Trade Representative want to get their bullying in while they still can. The rise of China, India, Brazil and similar countries will make the US view on such matters less relevant as time passes. The problem with making enemies on the way up, though, is that people tend to kick you harder when you are on the way down.
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