• Home

Data Privacy vs National Security: The Ongoing Debate

Some matters in law and politics never seem to quite go away. In this instance, storing and government access to on-line information and private information once again is on the Parliamentary agenda.

Home Secretary Theresa May has long championed companies storing such private data, and government agencies being able to get private data from such companies. She has tried several times, in various forms, to pass the necessary legislation- and has been defeated each time

2012 saw the Draft Communications Data Bill.  Under its provisions, communications companies would have had to store more varied types of personal data for 12 months- such as, for the first time, social media messages, web mail, voice calls via Internet, and gaming. However, a warrant would still have been needed for law enforcement to be able to get such messages from companies. Called the ‘Snooper’s Charter’ by its critics, its passage through Parliament was blocked- by Coalition partners the Liberal Democrats.

The next attempt for greater on-line surveillance was the Data Retention and Investigatory Powers Act (2014). The Act was introduced after a rapid progress through Parliament in response to changes in the relevant EU directives and legislation. It was intended to be emergency legislation to keep the legal requirements for Internet and communications companies to maintain records of calls, texts and internet use (but not the content). Although a replacement to the relevant 2009 Regulations, the Act was wider in its powers- and crucially had safeguards in the legislation to prevent government misuse of those powers.

In 2015, following the shootings in France, and anti terror related arrests and activity in Belgium and Germany, Mrs. May is once again trying to get support for increased surveillance powers for the security services, citing national security. The proposed Counter-Terrorism and Security Bill would add to existing powers that police and security agencies already have under prior legislation. One crucial such addition is that companies would store information on IP addresses, so that law enforcement could link IP addresses to computers and mobile devices, which would help to track down suspects.

In a rare show of Parliamentary consensus, both sides of both Chambers agree that more needs to be done in this regard. It is only the method that there is discord on. The proposals in the draft Bill are currently welcomed by many. Labour has expressed support for the Bill- as long as there is appropriate oversight. The Liberal Democrats have also welcomed the Bill- but cautiously. It is their stated concern that such legislation might end up similar to the former Snooper’s Charter which they greatly opposed.

The Liberal Democrats also expressed their concern that the Coalition was ‘dragging its feet’ in regards to on-line national security issues. Such a concern was echoed in the House of Lords by former MI5 Director General Dame Eliza Manningham-Buller; “[the government’s] slow and considered [approach to this matter is merely] heightening the risk”.

Chairman of the Home Affairs Select Committee, Keith Vaz stated that internet service providers should do more; “we can’t expect the government to sit there and be monitoring this all the time… The best people to do this are the providers themselves.” Support from such companies has been not as enthusiastic, though. Whilst approving the idea in theory, some in the industry point to the practicalities and expense to companies of actually storing such data.

In this matter, civil liberties campaigners and the police are surprisingly also in agreement. According to campaign group Liberty, the current proposals are indeed a step forward- so long as the enhanced surveillance and greater powers are targeted against specific groups or individuals, with the requisite warrants and oversight. Liberty and other such campaign groups have long opposed blanket government surveillance- which the draft Bill does not seem to entail. In agreement and support is Metropolitan Police Commissioner Sir Bernard Hogan-Howe. However, whilst tacitly supporting the Bill, he added that “my job is to help keep people safe. To get that balance between security and privacy is Parliament’s job.”

From the internet companies to the police, from the House of Lords to the House of Commons, in the matter of increased on line surveillance and data storage powers, there is a remarkable degree of consensus from all parties. No one doubts the need for increased powers for law enforcement and the security services (and not just as regards anti terrorism; cyber bullying, organised crime and similar are also considered under the legislation) as regards the Internet. No one disagrees the need to monitor and to police the Internet more effectively, and to utilise cyberspace as another method of affecting law and order.

The massive disagreement, however, is in the method, and the details, and in how the Bill would be put into practice. The Lib Dems strongly oppose on principle anything resembling a Snooper’s Charter (and have several Conservative and Labour backbenchers in support). The companies themselves want a method of storing the data that is efficient and cost effective, and one that will actually be of help to law enforcement. 

Amidst such consensus (a rare thing in such proceedings), it is the details and the method that need to be agreed upon. That might actually prove to be more of an issue than the actual debate on increased on-line surveillance- and thus once again sink Mrs. May’s attempts in this regard. 

The Bill is still being considered before Parliament. It is likely, though, that the Counter-Terrorism and Security Bill will indeed eventually receive Royal Assent. The question, however, is in what exact form. In what form will the necessary policing of the Internet take? What exact powers will the police have? What (and indeed how) data will the internet companies be required to store? The most crucial question of all, though, remains exactly what oversight and regulation will there be? 

 

 

Overall Crime Down but Reported Rapes on the Rise

According to official figures from the Office for National Statistics, Crime in England and Wales is falling. This conclusion was also backed up by separate research from the Crime Survey for England and Wales, which identified a 16% drop on overall crime. Despite this, however, the number of reported rapes is at its highest ever level.

This is not necessarily entirely down to an increase in the number of offences taking place. For a number of reasons, rape has historically been a significantly underreported crime. Now, victims are becoming more and more willing to come forward and make reports, so that more instances of this type of crime are actually recorded by police. Police writing off reports of rape and generally failing to record them properly is an issue that has raised concerns recently. Following the controversy that has surrounded the issue, according to the ONS’ head of crime statistics John Flatley, “it’s certainly the case the police are taking action to improve their recording and handling of rape investigations.”

However, there are concerns that this may be only one factor driving the increase in the number of incidents recorded, with figures also being driven upwards by an actual increase in the number of offences taken place. The official data does not offer any indication of whether this is likely to be the case, but some statisticians have stated that a 48% increase in knife-point rapes, for instance, is likely to be down to a genuine rise rather than simply better recording processes.

The increased number of reported rapes is made up of two kinds of allegation. Recent years have seen a significant rise in the number of victims gathering the necessary courage to report historical offences when they did not feel able to come forward at the time. However, nearly three quarters (73%) of the latest increase are down to current offences – a departure from the trend seen in recent years.

Overall crime, according to the Crime Survey for England and Wales, is down to a total of 7.1 million offences over the course of a year. This is the lowest level seen since 1981 when the survey started. Meanwhile, the ONS’ data showed that the number of rapes recorded by police in the year leading up to June was 22,116. This is an increase of 29%. The number of rapes in which the victim was threatened with a knife increased by nearly half, rising to 294 from 199.

Lawyers Doubt Usefulness of Government Mediation Scheme

MediationLawyers have expressed doubts about the usefulness of the new scheme which provides separating couples with a free session of mediation funded by the government. Lawyers have stated that they doubt the scheme will increase the number of couples who manage to resolve their disputes without taking them to court.

Jo Edwards, Chair of Resolution, a family lawyers’ group, was one of the voices expressing doubts. While she welcomed the move, she felt that it would have little impact. In particular, she pointed to the fact the scheme is only available in cases where one party is eligible for legal aid.

The new scheme was announced this week by Simon Hughes, family justice minister. It is intended to bolster the government’s efforts to promote the concept of mediation. The government believes that mediation can avoid courtroom battles, and provide an alternative that is both faster and cheaper.

However, the government has had little success in its efforts to encourage mediation so far. These efforts began in April 2013 directly following the controversial cuts to legal aid. Despite the fact that these cuts removed legal aid from the majority of cases in the family justice system, the number of couples turning to mediation actually fell significantly after the cuts took effect. In the first six months, the number of couples who attended mediation dropped by more than half (51%), despite active efforts on the part of the government to encourage the process. The Ministry of Justice has a £24 million fund set aside for mediation, but due to low usage rates only £9.4 million of this was actually needed.

Some have suggested that the reason that fewer couples are using mediation despite the lack of legal aid for courtroom battles is down to the reduced involvement of lawyers in the process. Previously, lawyers would have informed clients about the availability of mediation. Without legal aid, many couples are never consulting lawyers and simply heading to court as litigants in person. Critics have also pointed out that, despite the introduction of several schemes to make mediation accessible, the government has done relatively little to promote or publicise the process.

Despite the doubts expressed by lawyers, the Ministry of Justice remains positive about the scheme’s potential to help couples resolve their issues outside the courtroom. The ministry claims that almost two thirds of couples with child-related disputes reached an agreement after attending just one mediation session. The ministry also claimed that, overall, 70% of couples who use mediation reached an agreement without the involvement of the courts.

According to family justice minister Simon Hughes, “We know mediation works and we want more people to make use of it.”

Tory MP Calls for Halt on Lawyers Helping With Tax Avoidance

Conservative MP Charlie Elphicke today put proposals before clients that could see lawyers prosecuted if they help clients with tax avoidance. The plan would prevent solicitors from providing clients with advice which serves no purpose except to act as a way of avoiding tax.

Elphicke, was formerly a tax lawyer himself and is now Conservative MP for Dover. He has tabled the proposals as amendments to the Finance Bill. Today is the final day that this bill will spend in the House of Commons as part of its public bill committee stage. Among the issues dealt with by the bill is the legal framework to facilitate a crackdown by HMRC on the use of limited liability partnerships to avoid tax through “disguised employment.”

The proposed amendments would make it an offence for a solicitor to propose arrangements to their client that “[meet] the definition of ‘tax abuse.'” The definition in question is given as “any arrangement that, having regard to all the circumstances, it would be reasonable to conclude is an arrangement that has no business, social or other purpose other than the obtaining of a tax advantage.” Those caught carrying out activities which are decided to fall within this definition could potentially face prosecution.

Another proposed clause was also floated which would provide an expansion to HMRC’s already-growing powers to combat tax avoidance. The amendment would allow the tax office to “require any person to disclose any privileged information” in certain situations.

Elphicke’s proposals have met with mixed reactions in the political and legal spheres. However, the opinion of most legal and political experts is that there is little chance that the proposals in question will ultimately be passed into law. Nonetheless, Elphicke is adamant that he wants to at least ignite debate about issues surrounding tax avoidance and its morality. In an interview with The Times, he said “We need to get to a point where, at a dinner party, if somebody tries to boast that they’ve secured millions of pounds in tax savings for a client, people don’t just smirk and think it’s funny.”

Another Tory MP, back-bencher John Redwood, has also been notable for his views on the issue of tax avoidance this year. Redwood called on politicians to build up “a concept of good and bad tax avoidance.” This, he suggested, could avert the possibility that competing measures and proposals from different parties keen to tackle the issue might turn into an “arms race.”

New Family Court System Takes Effect

Family-CourtA new system of combined family courts is now in place throughout England and Wales as part of a range of family justice reforms. The new system has been described as “a hugely important change” by Justice Minister Simon Hughes, who also called the old system “very dysfunctional.”

Every year, around 270,000 new cases reach the family courts. These cases relate to a wide range of issues, notably divorce, domestic violence, adoption and intervention from local authorities. Concerns about the system in the past have particularly related to cases involving children. A 2011 review of the family court system said that delayed decisions on care and supervision were leaving children with their “futures undermined.”

The changes introduced through the new system are very much aimed at improving the way cases with children are handled. The system is intended to put greater focus on the experience and wellbeing of the children. Terms that were held to focus more on the rights of parents than on the real needs of the child, such as “contact” and “residence,” have been scrapped and a number of rules have been introduced to address practical problems with the process.

At the time of the 2001 review, such care and supervision cases averaged at 56 weeks. Though the figure has since been reduced to an extent, they should now be completed within six months in normal circumstances. This is partly thanks to the old three tiered system being replaced by a single, combined court.

Other changes include limits placed on the amount of expert evidence that can be used in any given case that involves children. This evidence can now only be used as far as necessary, if it is necessary at all, in order to ensure a fair resolution to the case. Furthermore, separating couples will be required to attend mediation awareness sessions before going to court with disputes about children or financial matters.

Furthermore, there are now new measures in place which aim to ensure that the best location is assigned for each individual case, and that the most appropriate level of judge is appointed to deal with it.

According to Sir James Munby, Family Division President, these changes constitute “the largest reform of the family justice system any of us have seen or will see in our professional lifetimes.”

Sir James went on to describe the new system as “a revolution” and to say that it represents “a fundamental change in the cultures of the family courts.”

How Eligible are You for a PPI Claim?

The raging PPI scam does not seem to lessen in intensity with more and more people making PPI claims. Even though £13bn have already been paid out by the banks, there are billions still set aside as there are so many people who have yet to claim their money back. In the first instance, people need to establish if they have or ever had a PPI policy. This is because they might have taken the policy without being aware of its existence or been mis-sold the policy in the first place when the insurance was not suitable for their needs or requirements.

Recognising the Policy for PPI Claims

You can check the credit card or mortgage payments which will reveal any additional payments that you have made for the PPI. In case of a personal loan, this is not possible as the payments made will not be obviously seen. If you have doubts regarding the payments, you can contact the loan provider.

Factors in Mis-selling

You must mull over the below factors to recognize your case.

  • The most obvious and clear cut case of mis-selling is the instance where a customer is sold insurance that he could never make a claim on due to the terms and conditions of the policy and that customer’s circumstances.
  • If at the time of taking the policy, you were not employed which may be due to many reasons including unemployment, retirement or medical condition: your insurance claim will not be valid.

Types of Premium

If the policy you had taken was a single premium type in which the entire loan cost was paid up front with the interest rate of the money borrowed for the policy being similar to that of the loan, you should in all probability get a refund by cancelling the policy. You are eligible for a PPI refund if the loan was cancelled or repaid early, but the PPI was not cancelled.

Other reasons for which you can get PPI help and enjoy compensation include the situation where you were convinced by the provider that the insurance was compulsory and if the total cost was not explained precisely to you.

If the refund offered directly from the bank is very low when compared to the actual value as per a possible PPI calculator, you can still pursue the matter and fight for what you think you deserve with the help of the Financial Ombudsman Service or a claims management company such as the PPIClaimsAdviceLine.

Car Smoking Ban Soon to be Implemented?

Car SmokingMPs in the House of Commons have passed an amendment aimed at banning smoking in cars that contain children by 376 votes to 107. While the passing of this bill does not mean the ban will necessarily take place, many indications seem to suggest that it will.

The amendment already passed successfully through the House of Lords, but returned to the House of Commons to undergo further debate. MPs were given a free vote by the government on the issue.

Thanks to the passing of the amendment, which relates to the Children and Families bill, gives the government the ability to implement the ban, but they are not under any compulsion to do so. However, various sources have suggested that they are likely to do so, perhaps before the general election due to take place next year. The bill also gives the same powers to the Welsh government.

Health Minister Norman Lamb, of the Liberal Democrats, seems to support this implication. He said that, in his opinion, the passing of the bill leaves the government with “a very clear mandate now to get on and legislate.” Lamb was commenting at the time on the very decisive majority that passed the bill.

Concerns about second hand smoking and the health hazard it poses are nothing new. There have been concerns for a number of years on the matter, particularly where children are involved. Exposure to second hand smoke during childhood can lead to chest infections, asthma and even cot death. An estimated 300,000 children have to see their GP with health issues relating to second hand smoke every year.

Smoking in public indoor spaces was banned in England in 2007 due to concerns over the effects of second hand smoke. When the ban did take effect, many believed it was already overdue. Most public attention on the ban related to smoking in restaurants or bars. However, smoking inside a car can create a concentration of smoke that is 11 times greater than you would get in a bar, raising serious concerns over what it could mean for children’s health.

Some have objected that the bill affects personal liberties that should be protected for reasons of individual freedom. However, many have dismissed these claims including health minister Norman Lamb. Addressing the issue, Lamb said: “The liberty to smoke in your car in front of a child doesn’t seem to me that important and protecting a child’s health does seem to me to be incredibly important.”

Marital Coercion Law to be Abolished

An outdated legal defence for women based on “marital coercion” is to be abolished. The law allows women absolution from offences, excluding treason and murder, if the offence was committed in their husband’s presence or under his coercion.

Vicky PryceThe defence gained public attention recently when Vicky Pryce (pictured right), former wife of Chris Huhne, unsuccessfully tried to use the defence to escape liability for falsely claiming to have been driving her husband’s car when it was caught speeding. Many people found it shocking that a woman – particularly one who was once a joint head of the Economic Service – would try to use this defence. The chief objection is that it is outdated, sexist, and relies on the assumption that a woman is ultimately under the control of her husband.

Governmental support for the abolition of this law was confirmed by Lord Taylor of Holbeach. The Home Office minister has stated that an amendment to the antisocial behaviour, crime and policing bill will be considered next week during the bill’s report stage. It is widely expected that the amendment, designed to repeal the offending section of the Criminal Justice Act 1925, will be approved by peers. Assuming this proceeds as planned, the removal of this defence will take effect two months after parliament passes the bill.

The amendment was first tabled by Lord Pannick QC in 2013. Cross-bench peer Lord Pannick said “I welcome the government’s decision to remove an absurd law that should have been abolished a long time ago.”

Lord Pannick went on to say that “the defence is widely regarded as a relic of a bygone age.”

Lord Taylor, meanwhile, drew attention in a letter to peers that calls for the abolition of the law had been taking place for some time. In 1977, the Law Commission was calling for the law to be abolished.

The concept of duress will remain unaffected by the removal of the law. Duress relates to cases where somebody committed an offence but did so under coercion. This defence is generally applicable, and is separate and independent from the concept of marital coercion. The concerns around marital coercion relate not to the concept of a woman being coerced by her husband, but by the underlying assumption that married women are under the control of their husbands in a way separate from general coercion. It also carries the implication that men are not subject to marital coercion, and that women in unmarried relationships are not subject to coercion by partners in the same way as their married counterparts.

The Website of UK Supreme Court Becomes Independent From the Government

The UK supreme court changes its website in December 2013 and Lord Hope is finally proved right.

The story started when eight years ago the UK supreme court was refused its own address. In 2005, Lord Hope has said that those things are important in the technological era we live in. Hope became deputy president of the court and even though he retired from this post earlier in 2013, he has worked on things concerning the web address of the court and its street address.

images

Nowadays, top-level domains are generic suffixes like .com and .net, plus country codes like .uk. what comes before this suffix is the so called second-level domain: .co, .ac, .gov. however, some important national institutions were allowed to share a second-level domain. Such institutions are the parliament, the police, the British Library and the Ministry of Defence. They use their own name or initials, followed by the country code. This plays the role of emphasizing their independence while at the same time it enhances their status.

Obviously, it is expected that the address for the UK supreme court would be supremecourt.uk. However, the court was not allowed to use it.

The response of the government officials was that this would be too expensive to be bought. It would cost a minimum of £125,000. Furthermore, no one could be sure whether the naming committee would allow “supremecourt” as a second-level domain because it is relatively small institution where few email addresses would be derived from.

The new court was obliged to use the web address supremecourt.gov.uk. This implied how tight it was to the government and its will and not to much an actual safeguard against unlawful government actions. Eight years ago there was an announcement that has proved Lord Hope’s predictions right.

In December 2013, a change in the web address of the supreme court of the United Kingdom was discussed because it was necessary to show its independent constitutional position as a separate branch of government.  The other alternative was shifting the own portal of the government which was impossible to do.

The final decision is that from 6 January 2014, the domain address of the court will be supremecourt.co.uk and a similar change would be implemented for the judicial committee of the council which hears appeals from some Commonwealth countries.

Human Rights Court and Where Their Last Word Lies in Law-making

Sir John Laws, the longest-serving appeal judge, has challenged the rule of Lord Bingham that Strasbourg  should be the final authority on convention.

default

The European Court in Strasbourg is not supposed to have the last word on interpreting human rights convention. According to Sir John Laws, the national courts should make and follow their own interpretations of human rights issues. He stated this while giving one of his Hamlyn lectures in London in November 2013. He, as the longest-serving lord justice of appeal, questioned one important principle established by Lord Bingham 10 years ago. He had postulated that the correct interpretation for a case, called Ullah, can only be made by the human rights court in Strasbourg. Those states that have agreed to the convention, should all accept a uniform meaning for it.

However, Laws expressed his disagreement with this statement. According to him, the Strasbourg court should acknowledge that different cases on human right issues have different facts and therefore, require different answers. Chris Grayling, the justice secretary, also believes that the human rights court has tried to become a supreme court of Europe and needs to refocus its sphere of authority. However, it is important to note that Laws has made clear that he does not question the court’s powers to make rulings that bind the UK under international law.

It is required that the UK abides by the final judgment of the court under Article 46. Furthermore,  section 2 of the Human Rights Act 1998 requires courts in the UK to consider the decisions of the Strasbourg court. However, this did not require states to follow Strasbourg rulings completely towards other countries.

The role of the human rights is to protect the fundamental values of people, said Laws. Human rights should not deal with minor choices on which people can easily disagree in the path of logic and humanity.

Furthermore, the potential supremacy of the EU court in Luxembourg and the human rights court in Strasbourg might challenge the effective development of the English common law.

English law has been developing through importing continental components and thus has been continuously refined.  Such principles were legitimate expectation and proportionality, plus the law of privacy. Those laws became part of the English law through Laws’ career as a barrister and a judge.