The alternative approach proposed by the Law Commission is no soft option – and no civil libertarian’s utopia, either. Relying on the existence of criminal sanctions alone as we often do now can be a lazy and relatively non-intrusive way of enforcing standards of behaviour: we do what’s expected of us largely for fear of “illusory or empty threats of criminal prosecution”, as the consultation paper puts it …
Using civil sanctions instead presupposes the existence of regulatory quangos, and requires active inspection by officials empowered to issue us with “stop notices”, “discretionary requirements” and fixed penalties
You can read the whole thing here. I welcome the proposals: I think more, and especially smarter, less heavy-handed state intervention to improve the civility of life generally would be a good thing. I’m not the sort of person who complains about a nanny state (not often, anyway). I’m more inclined to complain about the lazy absentee state who’s not there when you need it, or which treats you as a felon for doing something pretty minor (like, say, not renewing your tax disc).
On Monday Federal District Judge Lamberth gave a surprising ruling in Sherley v Sebelius, handing down an injunction preventing new US health guidelines on human stem cell research, drawn up on President Obama’s instructions, from being given effect on the basis that they breach legislation that prohibits the use of federal funds for
research in which a human embryo or embryos are destroyed
This is the “Dicker-Wickey amendment” first passed by Congress in 1996, and on the basis of which the Clinton administration permitted funding for research on embryonic stem cells (but not the derivation of those cells from embryos, which involves the destruction of embryos) and which even the Bush administration, whose guidance President Obama has now relaxed, thought permitted funding of research on existing stem cell lines. Here’s the ruling.
The judge’s reasoning (which to me, frankly, seems poor) is that in the Dicker-Wickey amendment Congress has plainly “spoken to” this policy issue and that the amendment unambiguously prohibits the funding of all research in which an embryo is destroyed. In his view, had Congress wanted to draw a distinction between research that directly destroys an embryo on the one hand, and research on derived stem cells on the other, it would have done so. He also rejects an argument that research can be divided up into discrete bits like this at all.
What I think the judge doesn’t deal with is the actual issue of statutory interpretation here: whether it’s really clear that all research that depends on the prior destruction of embryos – in other words, that happens after the embryos have been destroyed – is research in which those embryos are destroyed. The legislation seems to me at least unclear on this point (and indeed was badly drafted if the intention really was to outlaw funding of research on the fruits of stem cell derivation in perpetuity), a literal approach tending to favour the government’s view. On the judge’s approach, research on donor organ suitability would be research “in which a person dies”; and even the research President Bush authorised on stem cell lines created in the past could not be funded. The judge has I think rather superficially purported to apply the statute literally without really engaging in close detail with its literal terms; and I doubt it’s sensible for any judge to say Congress has already clearly spoken on nuances of what’s happening here, when science has been developing since 1996.
This is a bad decision. I’m sure Health Secretary Sebelius will appeal, and I hope she succeeds. I also hope Republican pro-lifers can be stopped from making gains from this in the November Congressional elections and from beefing up Dickey-Wicker after that. I suppose President Obama might even veto any such legislation. But even if the worst happens across the pond, at least it’ll be an opportunity for British universities to lead research in this vital area.
The timing is interesting: Nottinghamshire Police presumably laid the information at Nottingham Magistrates’ Court over a week ago, just in time to prosecute within the time limit imposed by section 127 of the Magistrates Courts Act 1980 (although it’s worth mentioning we can’t be sure that the prosecution is based on the broadcast itself, or on what Gosling said to the police after his arrest on the 17 February).
More important is the substance. Ray Gosling did not go to the police: they came to arrest him, a decision that was questionable in itself. Even if what he did amounted to
knowingly making to any person a false report tending to show that an offence has been committed
in the words of section 5(2), it’s less obvious that he caused wasteful employment of the police. You might argue they caused the waste of their own, and Gosling’s, time. Did anyone call for a murder investigation?
In any event, it’s not clear that any public interest factor here tends to favour prosecution under the CPS’s own guidance, except the amount of time the police spent on their investigation – which is surely not Ray Gosling’s responsibility given that he didn’t seek their involvement in the first place.
Most critically of all, it seems to me this decision fails to give due weight to freedom of expression. Ray Gosling’s Inside Out broadcast was a serious, personal and emotional contribution to a current debate about euthanasia. It was in a wholly different category from a malicious complaint to the police, and deserves much higher protection under the article 10 Convention right. How the CPS, and the DPP himself who had to consent, can have concluded that the balance of public interest favoured prosecution – and the consequent chilling effect that decision has on confessional memoirs in writing and broadcasting – I don’t know. The interference with Gosling’s and the BBC’s free speech can only be justified in the interests of preventing crime, but it is clearly disproportionate to that aim.
Anyone troubled by the less serious limits that privacy law has put on tabloid sexposés should be much more concerned about this real free speech issue.
Following on from my post the other day about privacy and the notorious “back door”, I’m surprised Lord McNally has been taken in sufficiently to propose new privacy legislation to “clarify” the law and remove some of its dangerous and onerous aspects, to use his words. He obviously wants privacy protection watered down.
To understand what’s at stake here, we need to notice the types of cases that are actually causing concern in press circles. They aren’t those involving politics, corruption or public money. On the contrary, they more often involve celebrity, sport and sex … If it’s true that privacy law has begun to prevent such exposures then that should be reassuring rather than dangerous. The fact that it didn’t do so in Mosley’s case or John Terry’s ought to make people think before concluding that those stealthy privacy judges have gone too far.
Fans of the Human Rights Act used to berate the previous Labour government for any rhetoric suggesting it might row back on the Act to any extent – but it never actually amended it to weaken any of the rights in the way Lord McNally wants to do with privacy. Strange that a Liberal Democrat, so many of whom normally defend the HRA and judges unconditionally, should be so eager to check them in this instance. Are the tabloids in charge of the government?
Two years ago now, I wrote that Bavaria’s ban on smoking in public buildings had been upheld by the German Constitutional Court. But it, or a new version of it, has recently been challenged again – and again upheld. Just before the Court upheld the Bavarian ban the first time round in 2008, it had [...]
I’m baffled by the prevalence of the belief among journalists that judges are bringing in a privacy law “by the back door”. It’s the phrase the Telegraph uses when reporting the fact that the golfer and Ryder Cup captain Colin Montgomerie has obtained an injunction (or in newspaper language, a “gagging order”) to prevent a [...]
This is the sort of thing that sends shivers down Eurosceptic spines. A couple of weeks ago the European Commission came out with this proposed Directive on suspects’ right in criminal proceedings. Draft Directive on the right to information in criminal proceedings Some of the rights the proposal aims at guaranteeing are uncontroversial in themselves: [...]
Every summer I seem to write about gay marriage in California. At least, I did in 2008, then in 2009, and now I’m at it again. Because Judge Walker of the US District Court has ruled, in Perry v Schwarzenegger, that Proposition 8 breaches the “due process” and “equal protection” clauses of the US Constitution. [...]
On the day the High Court here has delivered a blow against the Foxification of our media, in the United States Fox TV (together with the big networks, CBS, ABC and NBC among others) has had a genuine legal victory. The Federal Court of Appeals, 2nd Circuit, has ruled that the policy of the FCC [...]
I welcome today’s judgment today this judicial review, in which the radio talk show host Jon Gaunt failed in his challenge to Ofcom’s finding that an interview he gave in late 2008 breached the broadcasting code. And I’ve written about it at Comment is Free’s Liberty Central: The real question is not whether it’s OK to [...]
