See no evil…
Date: 12 June 2009
Authors: Roger Smith
Issue: Vol 159, Issue 7373
Categories: Opinion, Legal aid
Richard Thomas, the information commissioner, marked his imminent departure from office with a timely conference that had Jack Straw squirming. As a result, the justice secretary opened the discussion in uncharacteristically uncertain tones.
His problem was the revelation through the Daily Telegraph, of an overclaim on the community charge on his constituency home. Straw does a nice line in disarming self-deprecation but even reference to his mother’s early identification of his problems with arithmetic failed to dim his evident discomfort.
The general consensus of the conference was that Thomas has done a good job. Straw was certainly in no position to disagree and led the applause. However, some dissident voices in the privacy lobby argue that the information commissioner has not been strong enough, citing by way of example his unwillingness to take punitive action against Phorm, BT and others for targeted internet advertising.
Nevertheless, Thomas’s recognition of the need for public debate and love of a good phrase have significantly advanced the causes for which his office was formed. In particular, “sleepwalking into a surveillance society” encapsulated an idea whose time had clearly come. Thomas has also been willing to take a strong stand on freedom of information. Straw had to use exceptional statutory powers to bypass decisions in favour of publication of cabinet minutes on the Iraq War.
Thomas goes on to become the chairman of the Administrative Justice and Tribunals Council. His successor will be Christopher Graham, currently director-general of the Advertising Standards Authority. It is a tribute to Thomas that his successor will need urgently to deal with the issue of whether freedom of information and data protection legislation needs to be brought together and updated to take account of advances both political and technological.
One consequence of the Commons expenses scandal is that the Freedom of Information Act 2000, under which ministers had shown signs of restiveness, must now be regarded as politically secure and, indeed, that there can be a serious debate about whether it should be strengthened.
Old, but important, news
The Guardian liked the story about Private Eye’s victory in litigation against former Law Society President Michael Napier and his firm, Irwin Mitchell, so much that they were happy to publish it as a news story a full three days after The Times.
The Court of Appeal held that Mr Justice Eady, ironically the subject of a recent coruscating attack by Daily Mail editor Paul Dacre for anti-media bias, had been right to refuse an injunction restraining publication by Private Eye. At issue was a reprimand given by a solicitors’ adjudication panel over conflict of interest. Napier acted for a Hong Kong barrister, Michael Ford, in a Privy Council challenge to his suspension from the Hong Kong Bar for misuse of confidential client information. Ford became involved in at least five separate pieces of litigation related to a 1992 explosion at a Hong Kong power station ultimately owned by Exxon Petroleum.
The accident led to several deaths and injuries. In two cases, issued in Florida and Texas, Ford was himself the plaintiff. Napier’s problem was that another partner in his firm had acted for Esso, a UK Exxon subsidiary.
The core of the Court of Appeal case was the extent of the duty of confidentiality of the Law Society’s procedures. There were also significant side issues about the Law Society’s competence. It transpired that, at the time, the society had no coherent account of the complaint procedure to give to a complainant. The Office for the Supervision of Solicitors got itself confused in equating a reprimand from the adjudicatory panel and the more serious reprimand that may be given by the Solicitors’ Disciplinary Tribunal.
The Court of Appeal dismissed the idea that complaint procedures of this kind were confidential: “the subject matter underlying the adjudication was nothing private to the solicitor”. Napier might count himself a bit unlucky to be the subject of such media interest. After all, he had acted pro bono; Ford won his Privy Council case; and the Court of Appeal judgment reveals no suggestion of a conflict of interest with practical implications.
Nevertheless, the Law Society and Solicitors’ Regulation Authority are in difficulties in defending a lack of transparency at precisely the time when the House of Commons has come to such a cropper on the same issue.
Legal aid shift to civil?
Lord Bach, the legal aid minister, and Sir Bill Callaghan, chair of the Legal Services Commission, got a predictably rough ride at a recent Criminal Law Solicitors Association conference. Criminal lawyers were unimpressed by the principle, or the proposed method of implementation, of compulsory competitive tendering.
Lord Bach’s answers to questions were notable for his insistence that government policy is to reduce the amount of criminal legal aid and increase expenditure on social welfare law. This is the rather cumbersome name given to work on issues such as debt, housing, employment, asylum and immigration, public law and welfare benefits.
These areas account for about £200m of the £2bn annual legal aid spend. Crime costs around £1.2bn. Lord Bach said that “60 per cent is too high a proportion of the spend going to crime...we need to rebalance the budget”. He called the 10% on social welfare law “outrageous”. The criminal lawyers were not much impressed. Previously, the government’s policy was usually articulated as stabilising criminal expenditure rather than cutting it
Roger Smith is director of JUSTICE
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