Listen to our nation of shopkeepers

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Mike Weatherley MP on why we shouldn't force through a tobacco display ban.

Free speech means the freedom to offend

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A 'gang' (say the newspapers) of six British men have been arrested after a video of them burning copies of the Koran was posted on YouTube. Frankly, I'm revolted.

I'm revolted that people should publicly burn an artefact that millions of people revere, whether it is the Koran, the Bible, or even the American flag. These are actions which are intended to distress and outrage other people. Why do it?

I'm even more revolted that the laws in the United Kingdom allow people to be arrested for any such action.

Burning a flag or a religious or political book is an expression of an opinion, usually a deeply held opinion, that the item symbolises, or is the cause, of malign actions or beliefs. People should be able to express such opinions, even if it upsets and annoys others, without fear of being arrested and possibly imprisoned.

The United States has been served well for two centuries by a general presumption of free speech, encapsulated in an important amendment to the Constitution. It is felt there that free speech is vital if we are to have frank and open debate and a contest of ideas from which we can all learn and benefit. It is thought so important that it cannot be left to the judgement of officials or the police whether any particular statement is acceptable or not. We should have the same.

Many people in the UK think that the police are more inclined to prosecute attacks on the Islamic faith than on the Christian faith because Christians usually turn the other cheek while Muslims often get very angry indeed. They argue that Christians have even been prevented, by the police, from handing out Christian literature near a mosque; while it is unimaginable that Muslims would be stopped for handing out their texts near to a Christian cathedral.

The correct way to deal with these issues is simple. The right to free speech should apply equally to everyone. We might think that particular words or actions are gratuitously offensive – such as the disparaging nicknames given to racial groups – and as social beings we should argue with people to do that and try to get them to respect other people's sensibilities. But it shouldn't be against any law to offend people. It should certainly be against the law to threaten them or promote violence against them. And it should be against the law to use or threaten violence, even in response to some offensive remark or action. But there's a big difference between calling people offensive names and encouraging people to kill them.

Cold shoulder to cold callers

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75% of people think cold-calls should be banned. The consumer group Which? questioned 2,092 people, 25% of whom had felt intimidated by these calls. With the estimation that the average consumer receives 6 cold-calls a month, it’s no wonder the majority are fed up to the back teeth.

Unlike doorstep, telephone cold-calling is rather ambiguous. You can’t just put a sign up, and although households can ask to be taken off business’ databases, ringing round is, understandably, viewed as being a rather daunting and time-consuming task.

Although it is not obviously an act of trespass for somebody to cause another person’s telephone to ring, and for that person to hear his or her voice down the line. Conceivably, such an action could fall under the tort of nuisance. The law of tort, being largely judge-made, would need to be altered (this would be largely up to the judiciary to do) to cover telephone calls.

Like a doorstep, a telephone does invite people to call. However, this could be made negative by the electronic equivalent of a “no cold-callers” notice. It is up to the telecom providers, under demand from customers, to facilitate this. For example, a recorded voice could say “no cold-callers”.

But how would this be enforced? With doorstep cold-calling, the owner of the property can lawfully use reasonable and proportionate force to propel the uninvited caller back to the street.

The electronic equivalent of this is hanging-up. But neither stops the call in the first place. Injunctions would be the obvious remedy, but they’re expensive. Therefore, what is required, as opposed to simply banning, is for the telecom providers, acting in concert (they act together anyway to link their networks), to devise and offer a contractual and electronic equivalent.

Reviewing judicial review

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Once upon a time in Great Britain, law was made in Parliament. The people’s elected representatives gathered in the House of Commons and voted for or against a particular bill. If the vote was positive, the bill shuffled forwards and backwards between the Commons and Lords a few times, so that amendments could be made and the legislation improved. It was then sent to the monarch to receive the sovereign’s signature. Royal assent marked the end of the process and the bill became law. Absolute and legitimate law. Its removal from the statute book would require another act of Parliament, a change in mind of the people’s representatives.

Not any longer. An emboldened judiciary, its reach lengthened by the incorporation of the European Convention of Human Rights (ECHR) into British law and more recent equalities legislation, has gained the power to legislate from the bench. Our governments are increasingly fettered to the rap of the gavel, the sound of judicial review.

That this is a problem to us of a liberal stripe is increasingly obvious. Yesterday’s Mail reported that the Equalities and Human Rights Commission is debating whether to contest the Government’s budget in court, following the IFS’ claim yesterday’s that the budget is ‘regressive’. Never mind that the British public voted overwhelmingly for the parties proposing realistic deficit reduction; it may well be judges whom decide the nation’s budgetary priorities and, thereby, its level of indebtedness.

The written-in left-wing bias of the ECHR and equalities legislation disproportionally threatens with repeal laws that only violate the Left’s perverted definitions of ‘fairness’ and ‘freedom’. Reform-minded governments seeking to limit the state to an effective size are the most exposed, being, as they are, typically indifferent to equalities impact assessments or the placation of human rights lawyers, preferring, rather, to promote their countryman’s welfare.

Thankfully, our nation’s constitution has not been eroded past a point of no return. By repealing in Parliament the Human Rights Act 1998 and the Equality Act 2010, the Government can remove this obstruction to its reforming agenda. It would be foolish not to.

New report: scrap legal aid and reform CFAs

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• Our latest briefing paper, by lawyer and medical practitioner Anthony Barton, says that civil legal aid should be abolished for most compensation schemes.
• It argues that Britain’s legal aid system – the most generous in the world – is fundamentally flawed. By putting claimants in a no-lose position and defendants in a no-win situation (defendants cannot recover legal costs, even if they are successful), legal aid encourages risk-free speculative litigation.
• Given the rise of Conditional Fee arrangements (CFAs), commonly known as “no-win, no-fee”, civil legal aid is no longer necessary.
• However, current CFA arrangements are subject to some of the same problems as civil legal aid. At present, the balance of risk in litigation is biased in favour of claimants. This encourages excessive civil litigation and disproportionate costs.
• The main drivers of this risk imbalance are the additional costs of litigation – specifically, lawyers’ success fees and after the event (ATE) insurance.
• Success fees: The claimant’s lawyer can charge an additional success fee up to 100% of the legal costs if the case wins and nothing if the case loses. The level of this fee is set by the claimant, even though it is only ever paid by the defendant. There is therefore a clear incentive to maximize success fees.
• ATE insurance: In principle, claimants are liable for the defendant’s costs if their litigation is unsuccessful. However, ATE insurance covers claimants’ exposure to such costs liability. As with success fees, the cost of ATE insurance premiums are determined by the claimant but borne by unsuccessful defendants. The ATE insurance premium is usually waived is a claim is unsuccessful. Again, this insulates claimants from risk, while driving up the costs imposed on defendants.
• Lady Justice Smith, in the Court of Appeal, has recognized that the current system allows would-be claimants to “litigate weak cases without any risk themselves”.
• Lord Justice Jackson’s Review of Civil Litigation Costs proposes that recoverability of the success fee and ATE insurance should be abolished, so that they are borne by the claimant. However, he also proposes the introduction of one-way cost shifting so that costs are borne by unsuccessful defendants, but not by unsuccessful claimants. This would open the floodgates to risk-free, speculative litigation. His proposals should be rejected.
• The ASI report proposes that the level of additional costs – specifically success fees and after the event (ATE) insurance – recoverable from unsuccessful defendants should be capped. This would deter claimants from bringing weak cases with no risk to themselves, while preserving access to justice in the absence of civil legal aid.
• These reforms would go some way towards giving Britain a system of funding access to justice that is simple, robust, fair, accessible, affordable, and with costs proportionate to the damages at stake.

Download a copy of the briefing paper (PDF) here.

Labour calls for re-think on ASBOs

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Labour is urging the government not to scrap ASBOs, asserting them as crucial in keeping crime down, and in preventing communities being left “helpless”. Home Secretary Theresa May said that punishment methods need to move on from the ASBO, and be “rehabilitative and restorative” as opposed to criminalising; the coalition wants to spur a more “common sense” approach to policing.

In the past, ASBOs have been given out for actions ranging from the absolutely bizarre to the mind-bogglingly ridiculous. From a 60-year-old dressed in school uniforms, to flocks of sheep being used to intimidate, the ASBO has been used to quell some of the country’s most eccentric individuals.

The 1998 Crime and Disorder Act, which brought in Tony Blair’s “ASBO”, included a list of over twenty instances of anti-social behaviour, including drinking alcohol on the streets, begging, noise coming from alarms, malicious communication, and inappropriate use of fireworks.

Nobody’s denying that certain individuals, or groups, can cause a nuisance, upset and even make life a misery for others. But since their introduction, many have felt the ASBOs, in addition to landing almost four and a half thousand people in custody without trial, often directly breaches the freedoms of self-expression and identity. It is for Parliament, and Parliament alone, to determine what activity is criminal. Under the ASBO regime, a court determines that certain activities (which can be almost anything) is criminal. Criminal law should be the same for everybody, but ASBOs make it a criminal offence for one person to engage in certain activities but not for another person to engage in the same activity. The burden of proof, in imposing an ASBO (i.e. whether behaviour is anti-social) is the civil test of “balance of probabilities”, not the criminal test of “beyond all reasonable doubt”. Behaviour is “anti-social” if it causes “harassment, alarm or distress” to the victim. Worse still, “harassment, alarm or distress” has been said to mean whatever the victim thinks it means.

Human Rights lawyer Alex Gask wrote that the term “anti-social behaviour” covers and extraordinary large and ambiguous area, whilst the contents of ASBOs themselves are equally equivocal. Furthermore, the fair treatment of those accused, and the presumption of innocence are often overlooked. There are more profound social questions as to whether ASBOs are an appropriate way to deal with serious social problems, especially when they are applied to those aged 10 to 17.

And how effective are they anyway? Another “quick fix” solution, and a solution which, in itself, is at best good intentions gone seriously awry, and at worst a persistently botched job. May’s emphasis on community intervention, “people who are closer to the problem have to be driving the solution”, may seem optimistic, but it has to be better than the criminalisation of non-criminal behaviour.

Logical grounds for release?

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 As it’s the first anniversary of Scottish ministers releasing Abdelbasset Ali al-Megrahi, on medical advice suggesting he only had months to live, it’s interesting to re-examine the logic of his release.

Three months was posited as a “reasonable” life expectancy, but a year on Megrahi’s still alive and kicking (albeit still terminally ill and under palliative care only), whilst Libya continue to celebrate his homecoming, and a Foreign Office spokesperson comments: "The government is clear that Megrahi's release was a mistake.”

But there is a logical flaw underlying the entire debate over whether or not he should have been released. Commercial pressure is one thing, but the argument is defective. Megrahi was sentenced to life imprisonment. “Life” does not literally mean life. If it did, it would be certain that he would die in prison, whether or not that death was foreseeable (i.e. he was terminally ill).

As it is, he was to serve a minimum term of 27 years, which was backdated to 1999. This would take him to the age of 74. As Libyan male life expectancy is 72 (and Megrahi, a Libyan, has lived in Libya for most of his life), there was still a strong likelihood that he would die in prison.

Therefore, terminal illness was not a logical reason for early release, irrespective of the accuracy of the prognosis. If it were, you could have said, at the time of sentence, that he was only likely to live to 72. Therefore, he should only be sentenced to 25 years – indeed, a bit less than that to give him the opportunity to go home to die.

If his conviction was unsafe, then the appeal should have taken its course. But, of course, there is the problem that this might have taken longer than he had to live. The given medical prognosis would have been a valid reason to fast-track the appeal.

If (which we still don’t know for sure) there was compelling fresh evidence, then the court could have granted him bail pending appeal (an appeal which he then dropped). It might even have allowed him back to Libya, (this would have involved the UK, rather than the Scottish, Government). This would have been regardless of his medical condition. As it stands, the debate still rests on medical opinion, when really that seems to be irrelevant.

Catholic Care forced to close

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This week the last Catholic adoption agency in the UK has been forced to cease adoptions following the ruling of the Charity Commission. Catholic Care, a Leeds-based social care organization, only offers adoption services to heterosexual married couples. The Commission has ruled that their religious views do not justify its refusal to place children with homosexual couples. Gay rights campaigners may see this result as a victory, but I believe it reflects a growing trend of trampling on religious groups’ liberties and will mean young, vulnerable children will lose out.

Catholic Care has been offering adoption services for over 100 years, successfully placing children with families and offering post-adoption support services. It has a much better record than a lot of adoption agencies run purely by local authorities and receives its funding from the Catholic Church. By removing the agency’s right to offer adoption to heterosexual couples only, the Commission has effectively cut off funding for this service, as the Church will not give money to support a service that acts contrary to their beliefs. As a result, orphans and vulnerable children will lose out as a respected provider of these services is forced to close. It remains to be seen whether other agencies will be able to increase their provision in the area to make up for this.

Secondly, although the agency chooses not to help homosexual couples adopt, it does not actively prohibit it or encourage homophobia of any sort. Catholic Care is not stopping gay people adopting, it is just refusing to be forced into helping them do so. Homosexual couples are free to adopt using other adoption service providers in the area.

Lastly it’s wrong that, for the sake of the government’s crusade against discrimination, this quango is ending the good work Catholic Care do in the community. Their decision will bring no benefit to the local community and only continues to stoke concern over the growing limitations the government is placing on religious groups who seek to serve the community in accordance with their convictions. Our religious liberties are important civil liberties that must not be treated as an inconvenience or inferior to the apparent greater God of anti-discrimination laws. Therefore the Charity Commission’s decision represents a saddening defeat. As Pope Benedict XVI argues, it imposes unjust limitations on the freedom of religious communities to act in accordance with their beliefs and ultimately results in a less free society.

Anti-smoking: A disgusting habit

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Friends of mine whom studied Media at A level typically filmed mock-music videos of themselves performing their favourite artists’ tracks and opening shots to horror movies. Such inoffensive productions are not, however, for the sixthformers and teaching staff of The Hundred of Hoo Comprehensive School, Rochester.

As Big Brother Watch reports, students at the school have instead filmed themselves harassing smokers. Puffed up with self-righteousness, they take to the streets as self-appointed “ciggy busters”, illegally snatching cigarettes from the hands of ambushed bystanders. This is not without their teacher’s encouragement. In a display of her own prejudices, their media teacher, Margherita Gramegna remarked to the Medway Messenger: "The adverts don’t work, so we are going to make you stop smoking."

This is appalling. The school receives taxpayer’s money in order to educate the children that attend it, not to harass the general public. Teachers are employed to develop the their pupil’s minds, not to stunt them into Stasi-light.

It gets worse. The constabulary, led by the Chief Constable of Kent Police, Ian Learmonth, seems happy to condone this school’s encouragement of violent behaviour towards a part of the public; Kent police knew of the planned filming well in advance and did nothing to prevent it.

This event, both worrying and shocking in its own right, is also a microcosm of a more general problem. Our public services, grown bloated and distant, are increasingly failing to serve the public. The problem seems caused by centralisation, and the resulting inability of the public to directly hold public servants to account. One wonders whether this could have happened were parents, rather than Whitehall, to determine schools’ priorities and locally elected sheriffs, rather than remote officers, to set the objectives of local policing.

Community payback

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With the population of prisons and the cost of locking people up both rising, ministers have indicated that they want to see fewer people serving short-term jail sentences, and an increase in the use of “Community Payback”.

There are three purposes of punishment (and, before we consider any alternative, we are mainly concerned with prison): deterrent, reform and retribution. The first two do not stand up to logical consideration and the third must always take second place for restitution to the victim.

There is a fourth purpose of prisons, protection. This is not punishment at all; it is protection of the individuals from the criminal. Recalling that, in a libertarian world, all land is private and there is no public space, criminals are excluded, by the land-owners, from all land – except the residual areas we call prisons. They would be essentially the same as prisons as we know them, but their rationale would be exclusion from everywhere except them; not locking people up in them for the purpose of punishment, reform or deterrent.

According to libertarian principles, there are only two parties to a dispute in law: in this case, the victim and the alleged criminal. There is no place for “society”, whatever (if anything) this means. The idea of somehow “paying back a debt to society” (or to the “community”) is spurious. On that basis, there is no place for Community Payback.

It would be different if it were “Victim Payback”: the offender works directly for the victim, doing gardening, housework, or odd-jobs. But this assumes that the victim needs any work done, that he or she wants a criminal about the house (the very same one, perhaps, who has burgled it) and that the offender has the aptitude for the work. And who would pay for the supervision?

Enter, as always, free market principles! Drop “unpaid” from the specification of Community Payback. Let the offender work not for the community but for a private employer (at the moment private companies are often paid by the state to oversee work) and for a pittance (if necessary, below the minimum wage); work which nobody else would be prepared to do. Aggregated over 300 hours, that pittance might go some way towards giving restitution to the victim.