Decision day looms over professionals’ responsibilities

Being sued for not giving advise you never agreed to give, whatever next? Being in breach of contract for not building a new suspension bridge when only agreeing to deliver eggs to the local shop?

The Times Blogs

Looks like it is going to be an important week for defining just how far professionals’’ responsibilities extend to their clients. The focus on Tuesday (25th March) will be on the Court of Appeal where judgment will be handed down in the Mehjoo v Harben Barker case which brings to a head a definition of the point at which an accountant (or for that matter a lawyer) can switch off and say, “Sorry, pal, but nothing to do with me”.

On the face of it the case is simple enough. Mr Mehjoo, am Iranian, argues that that his accountants – Purnell & Co which subsequently merged with Harben Barker – should have referred him to specialist tax advisers so that they could advise him about his “non-domicile” tax status with the implication that this could have given him significant tax advantages. The fact that they failed to do so amounted…

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The Law and the Internet. Initial Thoughts.

The law and the internet aren’t exactly the best of friends, only recently the internet’s creator, Tim Bernes Lee, has called for an internet Bill of Rights to protect all those who use the internet and give people set rights for the online world. Now I am not arguing for the internet to be some completely free ‘do what you want’ social zone, internet fraud, botnets, hacking ect all need to be controlled but the internet is a public domain and it is just that, public. The internet is in a way what you make of it, you can become famous on twitter, build a business from nothing, get discovered via youtube, the internet holds no bounds but it has to hold no bounds within limits, like society.

Becoming rich via the internet because you stole credit card details or hacked a bank account wouldn’t be acceptable offline so it isn’t acceptable online but the people that partake in such crimes is tiny and placing restrictions on what sites can be viewed and what content can be portrayed harms everyone not just the culprits. We don’t place a whole town in jail because one of the population killed their neighbour.

Spying on what people view online, send online, receive online, and put online is an invasion of privacy. Hacking phones is an invasion of privacy, ask the News of the World, they know all about it, so accessing someone’s personal computer to see what they are doing online has to fall under the same area of law. Now I know that governments like to use the “national security” argument, well do we get to see what the government is doing behind our backs because they seem to be the biggest threat to national security, how often do we hear after a bombing or murder that the police knew about the culprit(s) but just didn’t act. Why don’t they get out an arrest them before they blow up another bus instead of watching me watch more funny cat videos on youtube.

The thing about the internet is that when it is used for good reasons it is extremely powerful, look at the way we have postponed internet bills from being passed or exposed hidden extensions of power that are in the small print of a bill, the government don’t like this but what are they going to do? ‘This call to arms is a welcome one. The threats to the web’s future are myriad and varied. Last year, former National Security Contractor Edward Snowden revealed that the U.S. and British governments conduct internet surveillance at a massive scale. This year, a U.S. court struck down the Federal Communication Commission’s network neutrality rules. In China, the government still seeks to control internet access with its Great Firewall. And in places like Egypt, we’ve seen governments shut down the internet on occasions in an effort to prevent activists from spreading information and organizing protests.'[1] Governments around the world have tried to gain control of the internet but just as piracy has shown, even if you aren’t a fan, you can’t really control the internet as such, you block a site and a new one just pops up to replace it or people find a way around the block, internet service providers didn’t really want to comply, they complied because they had to by law but if someone regularly gets around their proxy they wont act on it. Governments are helpless in this situation, the internet can’t be controlled, it can be policed by people like Microsoft who recently shut down the biggest botnet in the world, or at least started to with Kasperskey labs but more botsnets will spring up, they aren’t fixing the problem, they have just dealt with another problem, these are not the same thing. Where as laws for the physical world do deter crime, to some extent, in the online world you don’t have to reveal anything about yourself, you can create a completely new life from nothing! look at the program catfish! The online and offline worlds are two different beasts and trying to control both in the same way wont work, you need two different approaches. I don’t know what these are, I wouldn’t know where to begin, I know what needs to be stopped but saying that is the easy bit, the actual carrying out of this is the hard bit but this Internet Bill of Rights would be a good place to start, knowing your rights and what you are entitled to is always a good place to start.

[1] http://www.wired.com/wiredenterprise/2014/03/web25/

The Rule of Law

The rule of law is a concept that is widely accepted and talked about but hard to put a meaning to. Below I will discuss the principles of the rule of law and how effective this concept of the rule of law is in the UK.

Before we can see how effective the rule of law is in the UK we need to know what the rule of law is and this isn’t easy to define. “T R S Allan has noted that: “In the mouth of a British constitutional lawyer, the term “rule of law” seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.” In the mouth of the politician, however, the rule of law becomes a stick with which to beat other regimes.”[1] This quote from T R S Allen means that in Britain we abide by these rules and principles that we made so they are helpful guides to our legal system but other regimes that don’t follow our ways can be criticised with the rule of law for passing unjust and unfair legislation, take Russia and their anti-gay laws for example, these have been criticised heavily in the media and by lawyers across the world for being completely unjust and totally wrong. This clearly shows that there is no one set definition for the rule of law. It can be suggested that best way to define the rule of law would be instead to state what principles it incorporates.

The rule of law is not a legal rule as such; it instead consists of legal principles that are widely and some not so widely agreed upon. Firstly the rule of law holds that all actions of the state should have a legal basis, that is its actions should be lawful and within their rights to do so. This leads in to the second notion of that the law should be fair and equal; all are equal before the law. Thirdly the people that make the law and maintain the law should respect the law; they shouldn’t abuse the law and their position in society. Fourthly the law should be precise and clear, people need to know what the law is and how it affects them directly, people haven’t got time to look through mountains of books to find out what a specific law means, this law should also be adjudicated upon by an independent judiciary. These points as well as others have been pointed out by Raz who also mentions that it would be foolish to try and state all principles incorporated by the rule of law but Raz states that “all laws should be prospective, open, and clear; laws should be relatively stable; the making of particular laws should be guided by open, stable, clear, and general rules; the independence of the judiciary must be guaranteed; the principles of natural justice must be observed; the courts should have review powers over the implementation of the other principles; the courts should be easily accessible; and the discretion of the crime-preventing agencies should not be allowed to prevent the law.”[2]  Just from this list here without explaining any of them in depth you can see that they are important in the UK today. The most important some would argue is the separation of the judiciary. That separation allows them to stay free from political bias and keep everyone equal before the law, even the law enforcement agencies themselves.

Having established that the rule of law is not an easy concept to put a definition to it would be hard to evaluate its effectiveness in the UK today from its definition, or lack of. However by looking at its principles it becomes easier to evaluate. Starting with the principle that the law should be prospective, this means that law should look forward not backwards. In criminal cases retrospective laws are frowned upon due to them turning an act that was legal at the time it was committed is now illegal, this is entirely unfair. That being said the use of retrospective law is common place, especially in common law as this law is stated after an offence has been committed but the most notable case is that of R v R (1992).[3] This case revolved around marital rape and it was possible. At the time the offence was committed it was not against the law but the House of Lords decided that rape did occur and this is a clear example of retrospective legislation. This then would seem to be a contradiction of the rule of law but it was commented by Allan that “In another sense, the common law is not truly retrospective in operation. It attempts to apply previously articulated principles to new instances, and in its earlier development it gave concrete expression to understandings which, though implicit in previous practise or settled understandings, had not been settled authoritatively.”[4] This statement somewhat allows an exception to the rule of law in that if the law that is being created has been eluded too in previous cases and has been part of a rulings understanding but is now only being dealt with in an authoritative manner then it is acceptable. This is a crucial exception as murder is a common law, it would have been authoritatively created retrospectively and if the rule of law was strictly adhered to then this wouldn’t have happened.

Relating to this first principle is the one that the law should be open and clear. This principle is quite straight forward and easy to understand. The law needs to be open about what the law is, what is right and what is wrong, but more importantly the law needs to be set out in such a way that everyone who is subject to those laws understands exactly what is required of them. It stands to perfectly good reason that if people don’t know what the law is then they won’t know what they can, and more importantly, can’t do. This is mentioned by Lord Donaldson MR in the case of Merkur Island Shipping Corpn v Laughton (1983) “The efficiency and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two prerequisites. First people must understand that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Second, they must know what those rules are. Both are equally important.”[5] Lord Diplock then added this “Absence of clarity is destructive of the rule of law, is unfair to those who wish to preserve the rule of law, and encourages those who wish to undermine it.”[6] This clarity applies to both Parliament and the courts in creation of common law. If judges in the courts try to be over ambitious with a laws meaning or in the process of creating common law then the rule of law could be placed in danger. Lord Bingham made this point “it is one thing to move the law a little further along the line on which it was already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way.”[7]

The principle of natural justice is linked to a right that everyone has, the right to a fair trial, this means that there is no bias in the decision making process. Lord Steyn stated that “the rule of law enforces minimum standards of fairness, both substantive and procedural.”[8] This was backed up by Lord Bingham who said “The so-called rules of natural justice have traditionally been held to demand, first that the mind of the decision-maker should not be tainted by bias or personal interest and, secondly, that anyone who is liable to have an adverse decision made against him should have a right to be heard.”[9] This rule is a major point that we still talk about today and recent cases have had juries dismissed for talking about cases out of the court or being contaminated by intimidation or researching the case online. The jury being unbiased and uninfluenced by anything other than what they hear in court is massively important in the courts. This principle of the rule of law as has been highlighted is key to the legal system.

Having an unbiased jury and giving a person a fair trial is all well and good but for that to happen the courts need to be accessible. The courts do not take kindly to anyone who attempts to remove this right or restrict it. In the case of R v Lord Chancellor, ex p Witham (1998) the chancellor through statutory powers increased the fees of writs. This meant the appellant could not pay the increased fees and was denied access to the courts. Laws J in this case reported “ Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically –  in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.”[10] This principle is held very highly by the courts and they extend it further regarding the case of R v Secretary of State for the Home Department (2003). This case revolved around the government removing an asylum seekers benefits without proper explanation or notice. On this case Lord Steyn noted “That principle requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected…I accept, of course, that there must exceptions to this approach, notably in the criminal field, eg arrests and search warrants, where notification is not possible.”[11] This addition is vital , it is essentially saying that a person’s rights can’t just be changed or altered, they have to be informed  in court, by a court order, or in due notice.

The principles that have been examined so far have been those of Raz and they are widely agreed with, with maybe one or two variations. The biggest variation is that of Dicey. Dicey believed that three elements created the rule of law. Dicey’s first element was that “no man was punishable except for a distinct breach of the law established in an ordinary manner before the ordinary courts of the land”[12] Dicey seemed to be stating that a man can’t be guilty for not doing anything but he was also stating that he believed that regular law was dominant over arbitrary power held by the executive.

Dicey’s second element was that of none was above the law. “Every man, whatever be his mark or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”[13] This element is still visible today especially over the expenses scandal and the bale out of the banks.

Dicey’s third and final element was that of the constitution. He saw the constitution as a product of the courts and contained all the good and bad that was involved with judge made law. This can be seen in the actions of judicial review and the role of judges and whether new laws are compatible with the ECHR.

Dicey did receive criticism for his views, most notably that he overlooked discretionary powers and some questioned his understanding of the rule of law.

Relating to Dicey’s second principle is the principle of equality before the law. I have already alluded to this and King Rex has the same meaning, as does the judiciary, no one, no matter of background or status is above the law of the land.

A final principle to look at is that of legality. This is to stop the rights of an individual being infringed but it has clear limitations. It is powerless when the authority that carried out the alleged infringement has statutory power or legal power to do so. In these cases all that can be done is the courts can interoperate the law as best they can and in cases of statue they can’t interfere with the will of parliament.

The rule of law was strengthened by the passing of the Human Rights Act 1998. This set in stone rights that people were now guaranteed. Meaning the principles of the rule of law could be more strictly applied and used in scrutiny of the laws passed by parliament. Lord Bingham goes further and says the Magna Carta 1215 was “the rule of law in embryo”[14] as it started talking about and setting in place rights of people, mostly talking of free people and whites but it began the process. This it could be argued was encapsulated by the Human Rights Act which ensured rights for all, taking it a step further. The passing of the Human Rights Act has allowed governments to go to war in interests of national security but has also allowed people to stand up and take action against governments. Most notably was the argument over detaining people for prolonged periods of time without charge. This was aimed at terrorists but the Labour government of 2001 had to change and lower the detainment time without charge due to the campaign that it infringed human rights and infringed the principle of the rule of law that laws must be just and fair. Many thought that the legality of holding people for prolonged periods of time without charge could not be justified, yes it may have been made law but that does not make it correct and just. It was argued that the morality and legality of this act was dubious

To conclude the rule of law does not have a direct set meaning, it is a collection of principles. These principles are still relevant today as I have discussed. Most notably the right to a fair trial and the unbiased jury but also the fact that everyone is equal in the eyes of law, something people are keen to witness with recent economic events. The courts themselves recognise its importance even if its meaning is hazy. They hold that all courts should be accessible, something they don’t like policy trying to interfere with. The rule of law, maybe not talked about or thrust in to the line light a lot these days due to the Human Rights Act, is still valuable and still worth noting even if new acts and policies ensure a lot of its principles are enacted.

 

 

 

 

 

 

 

 

 

 

Bibliography

  1. T Bingham, The Rule of Law (1st edn. Penguin 2011)
  2. N Parpworth, Constitutional & Administrative Law (7th edn. Oxford University Press 2012)
  3. 3.      R Ekins, Judicial Supremecy and the Rule of Law, Law Quarterly Review (Sweet & Maxwell 2003)


[1] N Parpworth, Constitutional & Administrative Law (7th edn. Oxford University Press 2012) 34

[2] Ibid 36

[3] R v R (1992) 1 AC 599 (HL)

[4] N Parpwoth (n1) 37

[5] Merkur Island Shipping Corpn v Laughton (1983) 2 AC 570 (HL)

[6] Ibid

[7] T Bingham, The Rule of Law (1st edn. Penguin 2011) 846

[8] R v Secretary of State For The Home Department, ex p Pierson (1998) AC 539 (HL)

[9] T Bingham (n7) 1080

[10] R v Lord Chancellor, ex p Witham (1998) QB 575

[11] R v Secretary of State for the Home Department(2003) UKHL 570

[12] N Parpworth (n1) 40

[13] Ibid

[14] T Bingham (n7) 257