Category Archives: Law

Free Speech

The dogmatic adherence to the principle of free speech is in practice, taken to a point of absurdity.  It is free speech that allows me to tell you that the great and famous philosopher and writer Voltaire was recorded to have said, ‘I disapprove of what you say but I would defend to my death your right to say it.  In reality I doubt Voltaire would defend my right to tell you this as it is misinformation.  The quote is actually one from The Friends of Voltaire written in 1906 by Evelyn Beatrice Hall.  The context was not that Voltaire ever said it but that he held it as a state of mind at one particular time.  Evelyn later identified her inspiration for saying this as being the phrase, ‘Think for yourselves and let others enjoy the privilege to do so too.’  Whether this itself is fully accurate can also be questioned though the most legitimate sources I have uncovered include the Bibliotheque municipale de Lyon, which in turn quotes pages from the University of York.  The phrase Voltaire offered which became her inspiration certainly does exist and it does not seem to suggest that he has any belief in the war of who has the loudest voice that is currently being conducted in his name.

 

Whilst Voltaire certainly did defend the right to expression of ideas it is unlikely that he would advocate the kind of dogmatism that has developed around this principle in the modern day.  As a man of thought, he would have wished that people put thought into every principle by which they live their lives.  Dogmatism is the very thing that took the beautiful sentiments offered by the world’s religions and subverted them in favour of enacting their most egregious and disruptive principles.  If Voltaire were here today and he were to say, “Monsieur l’abbe, I detest what you write, but I would give my life to make it possible for you to continue to write” as he did in 1770 on the 6th of February in a letter to Monsieur Le Riche, I think had Monsieur le Riche written back saying, “You’re an idiot, IDIOT IDIOT IDIOT.  Voltaire is a divvy spanner.  Spacko Pillock.” Voltaire might have thought twice about his previously expressed sentiment.

 

Most people will agree when pressed that free speech must have limits.  In the States where free speech is most stringently protected by the First Amendment to the constitution a legal precedent was famously set by Justice Oliver Wendell Holmes in the case of Schenk v the United States, that consideration should be given to the use of the words and whether they were designed to bring about evils against which the government had a right to act.  Holmes complained at later times that this principle was abused to convict people for speech that should have been protected, which shows that it is a minefield picking through legal principles and precedents.  This instance concerned the limit of the principle where a possibility of criminal conviction was possible.  It might be questioned whether a positivist legal principle stands against absolute morality but an example offered by Holmes being that a person should not be protected for shouting ‘Fire’ in a crowded theatre shows that where very direct negative reactions may be caused speech can cross a line into becoming a form of weaponry or disruption.

 

A similar example might be the use of free speech to shout abuse in the ears of a child until their hearing is damaged.  Anyone who would consider this acceptable would find objection from almost everyone.  If someone tried doing this in a supermarket I would hope that they very quickly found democratic opinion was against them.  A line will be perceived, by anyone who does not blindly hold dogmatically to the principle without thought, that there must be a point at which speech stops being protectable and starts to become problematic.  Unfortunately the line is by its nature very broad.  Opinions will be divided in many cases.  Slipknot played 24 hours per day at full volume to break down the will of prisoners would probably be considered as something which could not be protected.  Sadly at one point at least, the objectors did not include the people charged with keeping the prisoners.  Leaving a 12 hour youtube video playing in the bedroom repeatedly chanting ‘badger badger badger badger mushroom mushroom’ before popping out to visit friends is far less offensive but your wife will no doubt consider it to be a serious abuse of free speech soon after you have left the house.

 

There are limits.  What those limits are may need to be looked at individually and based upon the merits of each separate instance but those limits do exist and they can not simply be defended against by offering a mis-attributed quote purported to have been said by Voltaire.  Even if Voltaire had said it, it would still not be absolute.  It would need to be considered according to the context.  In some quarters there is a tendency to abuse free speech in orgion expressivism that could almost be considered a weapon because it demoralises and terrorises the opponents of the speaker.  If there is an area where it can be most greatly defended it is in calm and measured political debate.  The instances in which the dogmatic protection of free speech should not be considered acceptable must obviously include obfuscatory marketing ploys designed to trick money out of people who are struggling to get by, surely it includes uses of speech that make people fear for their safety,  libel and slander are already covered by law, as is conspiracy or the promotion of terrorism.

 

There are of course instances in which the law does make a stand but it should not be considered by civilians that where the law doesn’t intervene free speech is therefore sacrosanct.  The lesser cousin to crime is the tort.  Torts are offenses against people and property that the law does not consider to offend against the public as a whole but the individuals involved; libel and slander are two examples of this area.  They have already been covered by the law but law moves at a glacial pace and simply because someone’s speech has not yet been covered does not mean that it falls under the dogmatic umbrella of free speech.  There are moral standards that must be evaluated and re-evaluated constantly.  Even if Voltaire was the dogmatic defender of our rights to offend and upset each other that people seem to think he was, he had no experience of Twitter, blogging, or the internet.  As an intelligent and thoughtful philosopher he would certainly have re-evaluated such principles in the modern era.  Considering the mis-attribution of the quote it is apparent that we should not need to wait for permission before exercising our own critical abilities.

 

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Political point scoring? Politics by penalty shootout.

I am guessing anyone who has found their way to this page has seen Question time this week in which Shadow Cabinet Minister, Angela Eagle MP, was accused of political point scoring in demanding the resignation of Lord Freud for stating that those who were not ‘worth’ the minimum wage due to disability should be permitted to accept a lower hourly wage.

Lord Freud has been quoted out of context in many places.  In reality the question seems to have been posed by a father who was concerned about the future employment prospects of his disabled daughter.  Without this context the appearance is that Lord Freud is a heartless Conservative ogre with little respect for human rights.  I kind of get the impression that a similar description would suit most MPs so I am not going to dwell on it.  I have certainly met many MPs who have impressed me with their humanity but it seems that once they are given positions of power in the executive they have to make choices between their principles and practicality.  For a prime example of this I would consider the pleas to end ‘Punch and Judy Politics’ before the election by Mr Punch David Cameron.  Another example would be the pro-Europe attitudes of many MPs until UKIP started doing well, whereupon their principles were pushed to the back of the shelf.

Certainly one aspect of the Punch and Judy system of politics is that one must always try to stick the dagger in when the time seems appropriate.  Those who succeed in achieving positions of power seem to have got there partially due to this particular skill.  Naturally Angela Eagle would say that Lord Freud should resign; it is probably the opinion of most people in the shadow cabinet that the entire Tory government should resign, so that can’t really be held against her.  Of course she did seem somewhat surprised that her failed attempt on the point scoring goal seems to have been met with complete hostility by so many people that even those who agreed with her (all across the nation) quietly started examining a bit of fluff they hadn’t realised was stuck on their sleeve whilst feigning a moment’s deafness.

Since then there appear to have been a constant barrage of penalty shootouts against Angela Eagle for having used the opportunity to try and make Lord Freud look bad.  Aside from the fact that Lord Freud was doing perfectly well with making himself look bad already it is the Punch and Judy nature of her response that lost her the opportunity to make an extremely valid point.  In fact she did make the exact point she wished to make but it was completely missed on two occasions because the audience was too intent on scoring points against her for her attempt to score points.  The newspapers have now gotten hold of the political football and are hurriedly scoring political points all over the place.  Angela Eagle only tried to score one point and now there are balls flying all over the place.

The one thing she repeated which should have been heard was that it should not be an issue of money.  It was put to her that Lord Freud’s intent was fully reasonable and everyone knew what he had meant, as though what he had meant was eminently sensible.  Angela Eagle suggested that it was a weakness of the Conservatives that they always brought things down to the issue of money.  The point she wanted to make, at which she should have stopped, is that there could be other ways of doing things.  Employers could be shown how their businesses could benefit from the diversity offered by disabled employees.  There could be ways to balance the work done so that those whose abilities didn’t cover all tasks could take up the slack in areas where they might excel, whilst more able bodied workers could cover for them in other areas.  The efforts of disabled workers could be coordinated to make them more effective.  Fittingly this task could be done by someone who had knowledge of what it is like to be disabled, this would enable many disabled people to be employed in this capacity as well.

Some of those were my own ideas rather than ones put forward by Angela Eagle.  The point I wish to make is that she was right to the extent that all issues cannot be solved by simply throwing money at them.  Whilst one way to get employers to take on disabled employees would be to subsidise wages this is not an ideal solution in our current economic climate.  When all that is on George Osborne’s mind is austerity and saving money the first option in any situation should not be to pay out money to deal with every issue on the agenda.  Subsidising the wages of the disabled is akin to paying employers to make the disabled go away.  Whilst it is the disabled who should be getting paid for the work they are doing, it is the employers who are being paid to hide them from public view.  The system would be ripe for abuse.  At present there are a huge number of people with disabilities in employment and the reason for this is that it has been discovered that many people on the autistic spectrum are actually far better than mentally typical people in many technology jobs.  By subsidising the wages of the disabled, government would only be encouraging employers to continue seeking out the best candidates for positions at a fraction of the cost.  Large companies would become expert in sourcing the best candidates for the lowest prices.  Also how would government accomplish the task of grading each individual to judge how great a subsidy they should receive?  Throwing money at situations leaves them ripe for abuse by those who are most adept at abusing situations for monetary gain.

The most ironic thing is that it was a Labour politician who was complaining about the idea of government paying out more money versus a Conservative politician that was suggesting there might be a way of dealing with the issue by the government paying more money.  It is my belief that most of our problems can be solved through methods other than spending cash.  We have all heard stories where the official line in some organisation has been that things must be done in a certain way that costs hundreds of pounds while the people involved have been saying something like, “If you just gave me the £2.50 for the bus fare I would do it myself.”  Again and again we hear tales of ridiculous amount of money being wasted not because the system allows it but because the system demands it.  During the MP’s expenses scandal there were tales that the clerks involved in controlling the expenses were the ones making the suggestions of how best to take the most money.

There are many times in our daily lives when we can see the absurdity of pricing and costs with the implications that they will eventually have on our environment.  I could waffle on for ages about ways in which money could be better used.  I don’t think that Angela Eagle’s point was too difficult to understand; it was just too easy to miss, especially in the noise of the furor over her ‘point scoring’.  Behind the call for Lord Freud’s dismissal she did make a very good point, one I think could be listened too and adopted by Conservatives, Labour, Libdems, Greens, whoever.  Our first approach to solving any political problem should never be to simply throw money at it.  We are all short of money, government included, but one thing that we all have in excess is common sense, but most of us rarely exercise it.

The Inequality of European Equality

The European Union is built on a number of principles based around fairness and the encouragement of cooperation between nations.  Equality is central to the philosophy behind this.  As is so often the case with the law and politics it is subject to continual change as precedents are set in courts and legislation is finessed by the legislatures of various countries and of the Union as a whole.  As is so often the case with the workings of mice and men, nothing seems to work quite right the first time.

Equality is important to Europe largely due to the fact that Europe has been largely under the influence of Christianity for well over a millennium.  Combine this with an inbuilt sense of fairness shared by all humanity and the aims of the Union and we end up with an aim for Union legislation that is important enough to create massive disturbance to the economic balance in some countries.  The idea of discarding equality and delivering preferential or prejudicial treatment to different members of society is more politically daring than the idea of simply brushing our hands of the whole idea of Europe and drawing a curtain on further involvement with the Union.  This is why UKIP and other parties with similar philosophies have grown so much more influential in recent years.

Immigration is a large target for enmity of newspapers and the disaffected.  There are continual complaints that jobs are being taken by immigrants from poorer countries.  There are even complaints that the same immigrants seem to also be claiming all our benefits at the same time.  Naturally they are an unfair target designed to distract the public from the far greater causes of economic problems within our country.  Most people are fully cognisant of the fact that immigrants provide the country with a dedicated workforce and contribute to a lot of our overseas dealings to the overall benefit of our economy.  The greater diversity of our population is beneficial on so many levels from natives of Europe developing tastes for products we can export to fresh DNA entering the genetic makeup of English people.

A far larger problem than immigrants coming into the country is the level of employment amongst those who are native to England.  A very small percentage of benefit claimants are taking money because they can’t be bothered to work and do not wish to look for a job.  A far larger proportion are actively seeking work and are unable to find it.  Public figures such as Edwina Currie echo the sentiment of Norman Tebbit that the unemployed need to get on their bike and find work.  The unemployed say they are looking for work and they are told they are not looking hard enough; they need to motivate themselves harder.  It is in the motivation to find work that the problem is developed.  There is a fundamental misunderstanding of the effect of ‘equality’ on the motivation of the work seeker.

Workers are largely in agreement that what motivates them to go to work is their pay.  If the employer stopped paying them then it would not be long before they would go somewhere else where an employer would pay them.  Likewise if they are being paid half the wage of the man next door who is doing exactly the same kind of work then it will not be too long before they start considering changing their affiliation to their neighbour’s employer.  This might seem obvious but it is central to the complaint that the unemployed are not motivated to find work.  If there is truly equality then there is equality of wage and therefore equality of motivation.  It therefore follows that all the unemployed are equally motivated to find work and that they cannot be at fault for not being motivated enough.  So where does it go wrong?  Why are people who should know better accusing folk of being too lazy to work?

The flaw of the system lies in misunderstanding what equality truly is.  There are so many factors to take into account when discussing equality that it can be difficult to develop an understanding of what constitutes equality without putting some deep thought into formulating an answer.  Naturally there is no time for most people to put deep thought into anything these days because they are too busy juggling a multitude of tasks to try and out compete everyone else in order to earn enough money to spend it on televisions, cars, horses and whatever else can be found to distract them from putting deep thought into anything.  Combine this with a far less rigorous education system focussed on developing vocational skills at low cost in short time and you find that few people really consider equality on more than a very shallow level.

If thought is not put into the subject of equality then it is plainly obvious that £10 in one person’s pocket is equivalent to £10 in any other person’s pocket.  £10 will alway have the exact value of £10.  Hence it is called £10.  If you are thirsty and need a drink then £10 can buy a lot of beverages.  Going on the logic that £10 is always worth £10 we have now found a solution to people who cross deserts dying of thirst; simply ensure they have a plentiful supply of ten pound notes and they will easily make it across.  Quite obviously there is something very wrong with this logic.  The beverage purchasing power of £10 is vastly less satisfying in the middle of the Sahara than it is in the Dog and Duck at last orders.

That is an extreme example but it serves to show that motivation will not always be equal for the same sums of money.  I daresay at last orders in the Dog and Duck I could convince some people to do all sorts of ridiculous and embarrassing things in exchange for £10.  If I was to try and similarly motivate a man dying of thirst in the middle of the Sahara then I would not be able to repeat what he would probably say to me in response, even though he is plainly in far greater need of a drink.

Likewise when motivating the unemployed in England there is the problem that the purchasing power of £10 in London is substantially less than the purchasing power of £10 in a rural village of Poland.  At first this does not seem like too much of a problem until you consider the Polish speaking ability of the average English person.  English folk are famous the world over for their language speaking expertise; everyone knows how bad it is.  English folk are therefore most likely to wish to spend their wages on buying a house, food and all other products in England rather than rural Poland.  A Polish worker on the other hand is far more likely to wish to save his money until he returns to his home country.  He will spend some to stay alive in England but he is no idiot, spending all his wages in this expensive country would be stupid when he knows that he will one day most likely be going home and he knows full well how cheap everything is back home.

The equality of wage is therefore not equal when judged by the ultimate spending power of the money the worker takes home.  The motivation is therefore unequal according to the same buying power.

So far this is all relatively simple and obvious.  Yet this does not seem to have been realised by the majority of crafters of policy.  Either that or they are keeping it well under their hats.  From here on in it all gets a lot more complicated.  Not all English people want to stay in England to spend their wages.  Not all immigrants wish to return home.  Some immigrants come from countries where they can make great use of the money they earn in the nation where they work; other immigrants come from nations where there is not all that much to buy on the shelves and the governance of the nation does not promote fond thoughts of returning.

Within the country that has an influx of economic migrants the government’s main concern should always be the people within its borders.  This does not necessarily mean favouring natives above immigrants but it does mean promoting the best opportunities for those who feel an allegiance to that nation and not demonising those who are restricted to being indigenous.  There are a great many hurdles to be countered in making sense of a system of equality that is inherently unequal but possible methods to deal with it would certainly include enabling greater cross border migration for reasons other than simply finding work.  If all migration is aimed at finding work then the problem will always exist that natives of countries favourable to paying a good wage will always be disadvantaged.  Employers will always be encouraged to pay wages that are not feasible for natives because they will always find employees from poorer nations for whom such wages are feasible.  It must be possible to give the native of that country the same spending power as the immigrant and the only way to do that is to ensure that emigration to poorer nations to make use of money seems as logical to the native as immigration to earn the wage seems to the native of the poorer nation.

It seems natural that language education should be heavily promoted in these economically wealthier nations.  Television and popular culture should also include far more international offerings.  Cross border travel should also be made easier; on an island this is obviously trickier.  Inevitably the only way to end the phenomenon of people from poorer nations having the advantage of greater motivation is the eventual equalisation of living standards.  As Employers take advantage of the availability of a more affordable work force we will ultimately see living standards dropping in England to match those in the poorer European countries.  This will further push the gap between rich and poor.  Naturally this is not ideal.  A way to prevent this eventuality would be to do whatever is possible to raise the living standards in each of the poorer nations.  This is part of the intention of Europe as a single political entity but to leave it up to the evolution of the market is going to create a painful and unenjoyable process for those who will lose out in the early stages of the transformation.  In the long run it seems inevitable that this is going to become a greater problem so it seems a good idea that these things need to be dealt with as soon as possible rather than dragging them out.  There are probably a great many other devices for resolving the problem but the first hurdle is to develop recognition that equality is far more complex than people seem to think or our governments are prepared to admit.

Transatlantic Trade and Investment Partnership.

I have been forced to comment on a great hooha spreading across the internet at present that seems to be getting a lot of people unnecessarily upset.  Anyone who has read my blogs in the past will know that I do not approve of corporations and they might therefore be surprised to hear I am not against the Transatlantic Trade and Investment Partnership.  I have always been a bit paranoid about the powers over my head ever since the days they were all poised to destroy us with nuclear missiles at any second so I am slightly surprised at my acceptance of the TTIP myself.  There are a number of commentators who are riling up the internet as though they were poking a wasps nest with a stick.  Of course the internet is quick to anger and there are millions of people who now oppose the TTIP.

I can’t help thinking that such an opposition is a sign of what I shall call farageing.  It seems strange to me that people who consider UKIP to be a group of morons have no problem with applying UKIP logic to the idea of an agreement with the States.  I can see where they are coming from to an extent.  I have no uncertainty that there will be a lot of negative effects from such a partnership.  However I am also sure there will be a great many positive effects from the partnership.  Such is the nature of change and if we were not able to put up with it then we would all be living in small villages of mud huts eking out a poor existence from what we could forage and farm in the small patches of land around us, with any excess being taken by marauders.  Whilst I might like to try such a way of life for a holiday I don’t think I would like to live there.  Change will always bring bad things but at the same time it tends to bring more good, that is why the majority of us would not trade our current homes for one a thousand years ago.

When England joined Europe in the early 1970s we felt a great deal of change.  Within a few short years there were an overwhelming number of new goods in the shops at ever reducing prices.  Admittedly if you want to buy a decent bit of Deutsch Wurst then you still have to pay a massive amount more than you would in Berlin but at least you have the option.  To compare what we can now buy in the stores compared to the early 70s you would be forgiven for thinking that the wartime rationing was still in operation at that time.  The breaking down of the barriers in Europe and the loss of customs tariffs on European goods allows us to live the colourful lives we have now rather than the grey lives we had then.  It also allows the producers of this country to sell with greater ease in Europe and when the pound becomes weak it means that there are far more customers helping to boost it up again.  Back then it was the way in which food improved that I was most impressed by.  Nowadays the thing that most people are having trouble buying and the thing that most people are coveting is electronics.  Our free trade agreement with Europe does not help too much there because in Europe it is England where the prices of Electronics seem to be most affordable on average.  If we had a trade agreement with America then we would suddenly gain the benefit of the fact that America has very low prices on Electronics compared to most other places in the world.

Aside from all the other benefits that might come from a trade agreement we would quickly find our capability to push our country technologically would become far more affordable.  Computers, tablets and phones would be cheaper and all the benefits of them would become more attainable.  Education would become cheaper for those who use such technologies to push themselves harder.  That education would be more useful with an extra market that wishes to trade with us without barriers.  This is only one aspect that would be helped by the agreement.  Those in favour would touch upon others.  Throughout the whole of Europe it is probably England that is positioned most favourably to benefit from this agreement.  We share a very similar language to the Americans.  They even name it English as it is so similar.  For us the agreement will be far easier to slip into than for the Germans or Greeks.

The one failing of the agreement that is being pointed out by the naysayers and is drawing all the negativity is the rights it gives to corporations to use arbitration to challenge governments that adversely affect their business interests.  Ironically the people who seem most alarmed by this are the same people who usually wish they could challenge the same governments themselves for all manner of idiocy.  They seek to challenge the governments for the idiocy of allowing corporations to challenge the governments.  It is true that we consider ourselves to be living in a democracy and we wish our desires to be adhered to.  With this in mind we vote for politicians to represent our wishes.  Once politicians are in power they can pretty much do what they want for the next 4 – 5 years.  What they do is usually appeal to the readers of the most popular newspapers because whatever rubbish is published in them will determine whether they get to keep their job at the end of the period.  Corporations are not one of my favourite forms of institution but at least they do listen to the actual democratic majority.  There are so many twists in the way that politics works that almost everyone must now be familiar with Winston Churchill having said democracy is the worst form of government.  The fact that he then said, ‘except for all those other forms’ meant that he still favoured democracy but simply felt its execution needed work.  The beauty of a corporation is that it will listen to the will of the customer.  One thing that many corporations have in common is that when they were not attentive enough and flexible enough to do what the customer wanted they went bust.  The thing that all the other corporations have in common is that they were attentive enough to do what the customer wanted and they thrived.

In general the TTIP is unlikely to cause a great deal of arbitration to be focussed against our governments.  It is a measure that is put in place in such agreements to protect companies in the worst possible circumstances where governments are using unethical levels of protectionism for their own industries.  This does not mean arbitration will be absent.  There will undoubtedly be some egregious use of the measures and no doubt we will all tut and blame the TTIP.  This will not change the fact that we will gain massive benefits from the TTIP.  It will also not change the fact that we are entering a new era of democracy.  We are being given a far more direct form of democracy than we had before because if we disagree with the way the corporations abuse such measures we have the ability to stop shopping with those corporations.  We have the ability to tell our friends to stop shopping with them.  With the internet what it is we have the ability to tell the world to stop shopping with them.  If the TTIP affects the web to such a degree that we cannot, and if this is something we dislike then we have the ability to set up meshnets, we have the ability to use usenet.  We still have a right to free speech, we have the right to say something about these corporations and they will quickly learn that the TTIP does not give them carte blanche to abuse their positions.

There will be change.  I have already said this.  But we live in a changing world.  Think of it not as change but as adaptation.  This will be a time of great empowerment for average people, if we want it to be.  Moving the emphasis of control away from government towards corporation really moves the emphasis of control into the hands of the people, and that is where it should be.

Further information can be found at the following URLs and at any to which they link.

http://mikesivier.wordpress.com/2014/01/15/osbornes-bid-to-end-democracy-by-the-back-door/

http://www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy

http://www.theguardian.com/commentisfree/2013/nov/11/eu-us-trade-deal-transatlantic-trade-and-investment-partnership-democracy

You will also find amongst them links to petitions of opposition if you so choose but you will need to find them yourselves.

It is time for companies to grow up

I am going to go out on a limb here and make a radical statement with this blog post.  At least radical for a tutor of business management and business law.   There may be many people who agree 100% with what I am about to say but amongst educators there seem to be depressingly few thinkers.  The task of the teacher seems to be largely a game of playing it safe.  The college or school will buy into the right to teach a certain subject and the examining body will provide a set of materials which will then be decanted into the minds of the students.  I am not one of the types who say those who can, do, but those who can’t, teach.  However, I do recognise that just as there are many who practise in their  fields with no idea what they are doing, there are also a great many teachers across the world who are simply seeking to earn a paycheck and never develop a full understanding of their subject.

 

Personally I am not saying I have a greater understanding, indeed everything I write whilst making my point today may well be complete garbage.  I have noticed that in general most ideas seem to be split down the middle between those who hold one view point and those who hold another.  Half of these people must be wrong.  In fact the people who stand on the fence and agree with some elements from each side would probably say that both sides are wrong.  A lot of the greatest experts we have ever had in many areas have ultimately been proved to be wrong.  It would seem that I can therefore take as extreme a viewpoint as I like because if it turns out I am a complete asshat then I will be in illustrious company.

 

I have been provoked to write today by the appointment of John Browett as senior VP of retail by Apple.  Browett has had a great deal of experience in setting the strategy of large electronic retailers in Britain.  American readers may not be so familiar with his work.  On the English side of the pond those who know his name are largely critical.  Those who don’t know his name are also largely critical, they simply do not have such a specific target at which to aim their ire.

 

I have had the benefit of working in an organisation that has been guided by Browett’s ministrations.  I spent approximately a year working in an electronics store which came under the general Dixons umbrella.  In our store the staff were pushed to speak to customers in a certain, almost scripted fashion.  For instance there were certain openings we were meant to use which would guide a conversation down a set path designed to maximise sales and ensure the purchase of add-ons, insurance schemes, accessories, etc.  Many of the staff resented this as they would not be allowed to improvise to the extent that they wished in order to achieve rapport with the customer due to the understanding that certain boxes had to be essentially ticked during the conversation in order that a mystery shopper would see that we were doing as we were told.

 

Naturally the customers could see right through this.  We knew the customers could see right through this so we would try and avoid appearing scripted at all costs.  We did have a lot of good conversations with a lot of happy customers but we would also have an overwhelming amount of customers who would say “FFS” and roll their eyes as soon as we opened our mouths.  I remember one customer whose hatred of the sales technique was so severe that a standard trick with the newbies was that as soon as he came in, a member of staff might suggest to them that they go and serve him.  Perhaps this was largely because they didn’t want to go anywhere near him themselves but at the same time it did also generate some amusement as newbie was left open mouthed at the tirade of abuse he received over heavy handed sales techniques.

 

We were a national joke and we knew it.  Searching through forums online would turn up pages and pages of abuse at the staff in our stores.  I am quite pleased to say that most of the usual complaints were for levels of customer service that fell far below that which was seen in our store.  We were both lucky and unlucky to be in a high street store.  Unlucky because high street stores have a difficult job coming anywhere close to getting the level of profit that could be made in an out of town superstore, this meant that for us ‘a bonus’ was a mythical beast that may have once been encountered by a lone employee 5 years previously.  We were lucky because we sought to be as helpful as possible and tried to ensure that every customer who needed help would get as much help as was humanly possible, whenever I have shopped in one of the out of town superstores I have been lucky to get assistance if I have gone looking for it.

 

And of course that is the crux of the issue with John Browett taking this position at Apple.  Apple have developed a fantastic reputation for customer service.  The Apple Genius bar is praised across the world.  They might not turn the profit that is usually desired from a retail chain but that is not really their purpose.  Everyone knows that those who are most tech savvy will usually turn to the internet to purchase their goods.  The advantage that Apple stores have is that the prices in the store and their prices online are not radically different.  Other stores are in competition with so many online retailers that they really have to cut corners to survive.  Apple stores are not really about sales though.  They are about the Geniuses and they are about customer service.  That is why it is worrying that Browett is taking this position of authority over them.  Browett’s philosophy is one of cutting costs and maximising profit.  Store members are being laid off and methods are being streamlined.  I imagine that down the line sales techniques will become more forceful and it won’t be long before Apple stores start to develop the reputation that Browett drags behind him like the rotting carcass of a hunted deer that he refuses to discard until he has taken every bit of protein off its bones.

 

Milton Friedman said many years ago that the purpose of a company was to seek maximum profit.  That is the free market system that we have been living with through the decades since his statement.  I am told that Keynesian thinkers like Stiglitz consider this approach to be one of the causes of the economic collapse we are currently trying to escape.  Even government has tried to do something to change this dangerous point of view.  The 2006 Companies Act in the UK kept the main element that directors should always seek to maximise profit but added that when doing so they should have regard for the implications of their decisions.  Essentially they should consider how their decisions might affect the environment, the economy, etc.  Not exactly a brave direction to take with legislation but then governments are timid creatures that know if they push too hard then all those lovely corporations with their lovely profits will go and cosy up to some other government.

 

The immediate problem with seeking to maximise profit is that while it may help the consumer to buy bargains at low cost it is inevitable that many of these bargains will be shoddy goods that are poorly designed and will soon need to be replaced.  The consumer will have little choice about accepting them though due to the fact that so many members of his family have been made unemployed by cost cutting measures that the family are unable to afford the quality goods anyway.  It is not all bad though.  At least if you are unemployed then you do not have to work in one of these corporations that are so keen on cutting costs.  That is not a great deal of fun as you are regimented to follow precise procedures designed to maximise profit, and doing so the whole time at the lowest possible wage the company can get away with paying you.  In addition you know that you have to reach certain impossible targets or else there are huge numbers of unemployed people put on the streets by other cost cutting companies who will eagerly take your place.  I am glad that I left after only a year.  Thankfully I now have a full head of hair again.

 

Of course cost cutting measures do maximise profit so this must be a good thing.  Lets see where this profit goes.  It doesn’t go on buying in quality stock.  Stock is kept to a minimum to ensure that nothing is left unsold.  As a consequence we had to turn away dozens of people everyday who wanted specific items.  Mostly those made by Apple.   It doesn’t go to the staff.  They are operating on a wage so low that they need to supplement their income with government handouts.  It somehow doesn’t seem right that a person should work in a miserable job yet not even earn enough to live on.  If tax payers money is being given out to support those who are working then there is something seriously wrong with the system.  It doesn’t go on the company’s infrastructure.  Out of about 7 tills our shop had there were many times when we would have a shop full of customers but only one till that was in operational order.  The touchscreens would break down or the OS wouldn’t load or the scanners wouldn’t work.  There was always something.  I cannot speak for the example of my store or chain but in general I know that profit also doesn’t go on paying taxes.  I was reading yesterday about Walmart paying rent for their property and therefore claiming tax back on the outgoing.  The people to whom they were paying the rent were a subsidiary of Walmart.  This subsidiarity also claimed back tax on the rent that they paid for the property… to another subsidiarity of Walmart.  I could go on but this would become quite tedious because there were over half a dozen subsidiarities of Walmart claiming back tax on rent that they were paying to each other.  Some of them did not even have a single employee.

 

So the profit will go to the shareholder.  With many of these shareholders one can not blame them for trying to get some profit out of a business that they have no hand in supporting through hard work.  They are trying to keep their head above water in similar industries a little higher up the chain.  They may get paid enough to invest in shares but they kind of have to invest in shares as they are the ones who the government is not paying out money to.  They have no choice other than to invest or they are going to have just as much trouble making ends meet.  Their companies are also governed by Milton Friedman’s idea that a company’s main aim has to be the making of profit above all else.  Indeed the only reason that companies care about the health and safety of their employees is because the law started making them pay out some of their precious profits as compensation when employees fell foul of dangerous working conditions.

 

We all know where the profit substantially ends up.  It ends up with those who are probably sitting on their own private beach sipping cocktails in some exotic country right now.  The reason we accept this is the vast majority of us live in such a hell at the hands of profit obsessed companies that the only thing that keeps us going is the belief that one day we too might be able to sit on a sunny beach sipping cocktails instead of slogging away on a production line while our body wastes away from standing in one position for eight hours a day while only being nourished by a diet of fried trimmings of the otherwise delicious food that is currently being cooked up for someone to eat outside their beach house after they have had their cocktail.  We imagine that if we play the game and work hard then maybe there is a slim chance we too might get there as well.  Some do make it of course.

 

I wonder how the exact figure compares to those who get there by simply winning the lottery.

 

This is the free market system.  While it is obvious that too much government control does not work, as we have seen from the failings of communism, it must be dawning on people by now that perhaps the free market may have its failings as well.  Naturally the best way to do anything is to find a balance between too much control and too little control.  It can be difficult working out exactly where that is and when the most powerful and influential people in the world tend to be those who personally make a profit from one form over another then it would be foolish to imagine that the balance is going to be any easier to perfect.

 

For me the conundrum comes from the fact that those people sipping cocktails in their luxurious beach houses let it happen.  In fact the conundrum lies with the fact that anyone lets it happen, that anyone plays their game.  We all know the saying that it is easier for a camel to get through the eye of a needle than it is for a rich man to enter heaven.  I can imagine how those who hold a secular viewpoint could ignore this wisdom as the mention of heaven suggests it has no implication to affect anything of substance that they might believe in.  This is not the case, as psychology and our understanding of conscience has successfully proved.  I certainly cannot understand how those who are religious continuously ignore this wisdom.  They purport to believe it fully yet they still seek to compete for the ability to buy things like shiny translucent stones when they know for a fact that there are people across the world, or even in their local inner city centres dying of diseases that are easily preventable with a little monetary input.

 

Personally I have had difficulty playing the game myself.  I have certainly had the dreams of becoming wealthy myself but since then I have begun to understand my conscience.  I am in a job now that I enjoy.  I do not make enough money to pay all my bills but I am constantly learning and the work atmosphere is friendly.  That is how I continue to live my life.  If I had to return to working in the minimum wage conditions of those who support the shareholders I would not do it.  The cost is too high.  Time is our most precious resource, followed by our health and happiness.  All those things would be taken from me if I were to submit to being the pawn of the free market system.

 

Neither would I seek to be one of the ones who sit at the top of the ladder.  If I were to make money as a shareholder in one of these profit driven companies then the things I have experienced combined with what I know of the world would not let me do it.  I would feel constant guilt and would not be able to feel happy.  Not to mention that too much comfort makes you flabby and robs you of your health anyway so you still cannot escape that unhappiness.

 

I know there is a better way.  I have not fully engineered all its intricacies yet but the way that we are doing things at the moment is broken.  If we actually got to simply choose where we were in the system we would realise that most people would get a choice between working hard in poverty or growing fat in opulent surroundings with the disdain of the rest of the population.  There are obviously exceptions.  Starving with a bloated stomach in an African scrubland would be an exception.  Getting a little education and managing to afford to take on a twenty year mortgage or pay enough rent to live somewhere that is not horrible but not affording to buy a huge mansion would be another exception.  I am not even happy with that one though.  I guess I am cursed with being a worrier but it feels like living like that is an equivalent to putting my fingers in my ears and closing my eyes and hoping that the world will sort itself out.

 

I am happy to accept less if others can have more.  Of course I would like them to put in a decent amount of effort to achieve what they gain but I do not think their failure to work is their own fault.  That lies with the cost cutting companies refusing to employ them whilst also putting anyone who would employ them out of business by undercutting them.  This does not mean I am anti company.  I think that the company has the potential to be the most powerful force for good we have.  In order to do this though I think it is time that the company grew up.  The concept of the company is largely around 500 years old.  Its petulant adolescence is over now.  It is time to start taking on some responsibility.  It is time to develop a community spirit.  The time has come to stop squabbling over who has the most toys or gets the most sweets.  As companies approach adulthood they must start taking care of their environment.  If children were left in a house to look after themselves indefinitely we all know that it would not end well.  If these great big children called companies are left in a world to look after themselves and they fail to grow up then this will also not end well.

PcMakto

http://pcmakto.wordpress.com/2012/07/19/apple-v-samsung-criticism-of-ip-law-judge-birss-rocks/

As I mentioned earlier,  I have another blog besides that of the college.  It is my PcMakto blog.  So named after the Toruk Makto of James Cameron’s Avatar film.  I do not ride a Toruk but in much the same way that a Toruk Makto is part of their steed I often feel I am part of my laptop, hence PcMakto.

Over on the PcMakto site I tend to post all my tech related blogs.  Some of them can be a bit dry, e.g., my blog on how to create a static date macro in Word 2010, but a lot of them are very interesting if you are into tech, especially the business side of tech.  I will probably not be linking you to a great deal of stuff over there as it is very much focussed on one area while here is my mindsplurge area where I essentially catalogue my thoughts and my life whenever I have the time.  Unfortunately time seems to be in ever more short supply day by day.

The blog I have posted the link for above is basically just to show you the way there but you will have noticed it is on a specific topic.  So if the case of Google v Samsung is of interest to you then you will find that actually PcMakto is linking through to my college blog which I mentioned earlier.  Incidentally if you are looking for a cheap, indepth, concise alternative to retaking A levels then the college, Capital School of Business and Management is a good place to go.  The advantage we offer is that our courses are vocational alternatives of about the same length, though a little bit more intense, and they offer the opportunity to bypass the first two years of most degrees, sweet.  Anyway I don’t want to bore you with an advert.  That is not why I am here.  I just thought I would let you know that if you have not yet read about it the Google v Samsung case is not your average court case.  As far as court cases go it is actually pretty funny.  Of course if you are on the internet I will assume you know this already.

If you are interested go check the other blogs out.  If not then just chill and enjoy your Thursday.  I can’t believe it is Thursday already.  I don’t know where the time goes.

It is time for the doctrine of precedent to be reformed

Lord Denning suggested a number of times that Court of Appeal judges should be able to go against the decisions of the House of Lords where it was apparent that the House of Lords had made their decision without considering all the relevant authority that applied in the case.  It is not surprising that Denning would feel this way.  One gets the impression that he was a bit of a loose cannon.  The Dirty Harry of the British legal profession.  There were certainly many judges who disagreed with his views on any number of things and I sometimes think that the main reason he was made into a Lord was so that when he came up with his more radical decisions they would be watered down by the presence of four other Lords sitting the case rather than only two other Court of Appeal judges.  No doubt the feeling of having risen to the top of the legal profession on the merits of your abilities would also give the Lords a greater level of confidence with which to oppose Lord Denning, arguably one of the most famous (infamous?) judges of the twentieth century.

Denning tried to make use of this belief that precedent could be approached with the flexibility of attitude that was a hallmark of his career in the case of Broome v Cassell [1971] 2 Q.B. 354; Denning convinced the other judges in the case that the precedent set by the House of Lords in Rookes v Barnard [1964] A.C. 1129 had been made per incuriam, without taking into account previous judgements of the House of Lords.  Of course Rookes v Barnard was set before the 1966 practice statement and as such would have been a case in which the Lords did not have the discretion to go against previous decisions of the House.

When the case inevitably went before the Lords the Lord Chancellor was not impressed by the Denning’s obvious attempt to escape the limits of stare decisis.

This did not stop Denning making another attack on precedent in Schorsch Meier GmbH v Henning [1975]QB 416 where he tried to use an idea expressed by the maxim ‘cessante ratione legis, cessa ipsa lex’, with the reason for the law ending the law itself also ceases.  While some would say that the greater the age of the precedent the stronger its authority others might say that a lot of precedents should simply get old and die.  Out with the old and in with the new.  The court did not fully back Denning in this instance.  The case they were looking at was Re United Railways of Havana and Regla Warehouses [1961] A.C. 1007.  Foster J agreed with Lord Denning that the rules had changed and a different result was necessary.  Lord Justice Lawton showed the resolve that was wielded with his higher rank and went against the majority with the opinion that the Court of Appeal had no authority to overrule the Lords.

Denning got his way in this case but he tried to use this rule again in the case of Miliangos v George Frank (textiles) Ltd [1977] QB 489 and this time the case went on to the House of Lords where they once again took a very dim view of Denning’s attempts to avoid stare decisis.  They then went on to decide the case using exactly the same logic as Denning had used at appeal.  The House of Lords has been very certain that they do not wish the Court of Appeal to have a mind of its own.  However, as this assertion was not made as the actual ratio decidendi (the reason for the decision of the court in the case) in Miliangos is it a binding assertion?  It would seem that this case was an end to the matter but it seems that to be binding, precedent needs to be very strictly tied to ratio decidendi.  My evidence for this strictness is actually the main point I wish to address and the previous 600 words or so serve simply as an introduction to the subject.

The case that gave me pause for thought was the case of Malik v Bank of Credit and Commerce International [1997] UKHL 23:

This is a case that is generally listed as setting a precedent that in a contract of employment there is an implied term of mutual trust and confidence.  However I was taught in University that the precedent it set was that it is not possible to claim for loss of reputation in a case on contract.  It is a view I have since seen set out in a number of text books.

  • The claimants in this case were senior employees of the defendant bank.  Following the discovery of a major fraud at the highest levels the bank was forced to liquidate and this led to the claimants being made redundant.  The fraud was quite severe and involved money laundering, terrorists and extortion on a global scale.  Malik and Mahmud found that having been made redundant in such circumstances they were unable to find employment in the financial services industry.   They believed their reputations had been destroyed.
  • Malik and Mahmud relied on an implied term in their contract of employment in order to sue their former employers.  They said that although it was not explicitly written into the contract it was so obvious that it could safely be assumed to be part of the contract.  The implied term was such that the employer should at no point during the employment behave in such a way as to damage future employment prospects.
  • This idea went through the courts and all the way to the House of Lords.  The position held by Malik and Mahmud was contrasted with jobs such as an apprentice or a performer where the relationship was considered to be one such that the employer would be seeking to improve employment prospects while in this case that would not be expected of the employer.

Held

  • In the most recent book to take the view that the case was about the impossibility of claiming for loss to reputation in a contract case it was reported that the claim failed and that Malik and Mahmud did not win.  The following quote from the Court of Appeal supposedly supports this principle.
  • “…damages are not recoverable in contract for damage to or loss of an existing reputation” This was said by Lord Justice Morritt [1996] I.C.R. 406
  • However the law is a tricky and complicated beast.  Perhaps all these writers have not understood the decision in this case or perhaps it is a case that there is something very wrong with the system of precedent.
  • The case went on from the Court of Appeal to the House of Lords where Lord Steyn drew attention to the fact that a claim could only succeed when there was no legitimate reason for the employers’ conduct and that the conduct was of such a nature that the implied condition of trust between employer and employee would be likely to be severely damaged.  Lord Steyn says that of course it is very difficult to calculate damages in such a case but he mentions, “no Law Lord said that in breach of contract cases compensation for loss of reputation can never be awarded, or that it can only be awarded in cases falling in certain defined categories.”  He goes on to say, “A rule that damages can never be recovered in respect of loss of reputation caused by a breach of contract is also out of line with ordinary principles of contract law.”  He goes on to talk about the decision in Marbe v George Edwardes (Daly’s theatre) Ltd [1928] 1 K.B. 269 which he says is in complete contrast with cases that were relied on by the judges in the lower courts, “In Marbe on similar facts the Court of Appeal came to the opposite conclusion: damages in respect of loss of an existing reputation was expressly held to be recoverable”.  Lord Steyn then backs this up by saying, “in Herbert Clayton v. Oliver[1930] A.C. 209 the House of Lords approved Marbe. The House of Lords did so expressly
  • Lord Steyn says that, “In my judgment therefore the authorities relied on by Morritt. L.J. do not on analysis support his conclusion. Moreover, the fact that in appropriate cases damages may in principle be awarded for loss of reputation caused by breach of contract is illustrated by a number of cases which Morritt L.J. discussed: Aerial Advertising Co. v. Batchelors Peas Ltd. (Manchester) [1938] 2 All.E.R. 788; Foaminol Laboratories Ltd. v. British Artid Plastics Ltd. [1941] 2 All.E.R. 393; Anglo-Continental Holdings Ltd. v. Typaldos Lines (London) Ltd. [1967] 2 Lloyd’s Rep. 61. But, unlike Morritt L.J., I regard these cases not as exceptions but as the application of ordinary principles of contract law.”
  • He says that there is a natural difficulty in quantifying such damages but ultimately concludes by saying, “The limiting principles of causation, remoteness and mitigation present formidable practical obstacles to such claims succeeding. But difficulties of proof cannot alter the legal principles which permit, in appropriate cases, such claims for financial loss caused by breach of contract being put forward for consideration. “
  • Lord Steyn then allows the appeal with the majority of the Lords giving their full backing without contributing anything further to the judgement.  This judgement was delivered in 1997.  I am at a loss to explain why law books still say that the decision means that there can be no claim for loss to reputation in contract.   Fair enough it was stated by Lord Steyn explicitly that his ratio was concerned with the implied clause about trust and confidence but the only way I can imagine the Court of Appeal version still standing for the principal that one cannot claim for loss of reputation is accepted is if the Court of Appeal version set a precedent in its ratio decidendi that still stands despite the fact that the House of Lords allowed the appeal against the case with a ratio decidendi  on a different point and therefore did not reverse the CA judgement despite Lord Steyn leaving no doubt that it was decided per incuriam.

The CA case goes down as precedent in history and the HL obiter is left to disappear into the deep pages of the law reports where few students of law will ever see it despite the fact that it represents such incredibly strong persuasive authority that no-one who ever brings an analogous case to court will ever have any doubt that reaching a court with the requisite authority to overturn the decision is a mere formality.  If it were overturned by a lower court it would offend against the doctrine of stare decisis and the judges would certainly find that the Lords would disapprove, even if they then followed the same reasoning to reach the same decision themselves.

If this is the case then the only way that a case on similar facts can be decided and a new precedent set is to take the case to the House of Lords and go through the trouble of an additional level of law to set a decision which is so plainly clear that it could be set by a clerk with a rubber stamp.  I have reached this conclusion as the only alternative is that everyone who has written a book claiming the case sets a precedent of an impossibility to claim for loss of reputation is either wrong or the court system is ludicrous.  I am not so arrogant to believe that I am sharper than numerous writers of law books before me but the fact that the law is an ass is well documented.  I have therefore assumed that the system of precedent is plainly in need of reform.  If the system of precedent is to blame and the law supposes it is impossible to claim as a precedent these words of Lord Steyn then ‘”If the law supposes that” said Mr Bumble squeezing his hat emphatically in both hands “the law is an ass – an idiot”’ (Dickens (obviously) Oliver Twist 1838)

Although that beautifully conclusive statement would be a delightful point at which to finish writing it does not offer us a solution.  Indeed we have been aware that the law is an ass since 1838.  In fact as the expression was originally published by George Chapman in the 1654 in the play ‘Revenge for Honour’, which many believe to actually date from 1620 this is not news at all.  Given the speed at which the legal profession pushes through reform we can safely anticipate the law still being an ass at the dawn of the next millennium.

Changes can be made though.  Of course there are many things to be changed in the law and the world in which the law is used is changing at an extremely rapid pace.  If the system of precedent is bound to the extent that I suppose it is then it is in need of change so that it is adaptable enough to cope with this changing world.  In fact, even if I am wrong and the law of precedent is only bound to the extent that Denning tried to circumvent then my case is no less weak.  Change is necessary.

The common law’s greatest strength is its flexibility to adapt to different situations that are brought before it.  However the system of precedent has greatly reduced this flexibility and led to the common law being far too rigid.  So rigid in fact that the system of equity was brought in.  The greatest strength of the system of equity was its flexibility.  However the system of precedent has greatly reduced this flexibility until now equity is seen as too rigid.  We cannot continue like this.  We desired this flexibility in the past when the pace of change in life was extremely slow.  Now the world radically changes shape every few years.  The past two decades have seen the necessity for parliament to pass more legislation than it did in its entire history beforehand.  This is why we need to get some of this flexibility back.

What should we do?  Last time we created Equity.  That appears to be a short term solution as equity is now as rigid as the rest of the law.  What needs to be reformed is the system of precedent.  It has become plain that with the passage of time things change.  That was Denning’s observation in Schorsch Meier and Miliangos.  Those cases were 50 years ago.  Denning never lived to see ‘change’ as it is now.  The necessity of the Court of Appeal to make decisions that go against precedents set by the House of Lords is stronger now than it ever was.  Of course there will be many people harrumphing quite seriously at this idea.  However, I do not propose the Court of Appeal is given free rein to just do as they please, but I think there should be a time limit placed upon precedents.

There should be discretion given to the House of Lords to pick a limit within a certain time frame.  If they are offered a maximum of 50 years by statute then this seems quite reasonable to me.  In cases that involve very serious seemingly timeless issues they can impose the limit of 50 years before the precedent ceases to be binding and becomes only persuasive.  If it is an issue that is affected by the rapid change that goes on around us all the time maybe they can set a limit of 25 years for the precedent to remain binding or perhaps any other figure.  If judges can be given discretion to choose a maximum or minimum date for a man to be incarcerated then I am certain they will not have too much difficulty in setting the expiry date of a precedent.

Doing this will save the money and time that is wasted with the formality of taking a case to the House of Lords in order to have a stale precedent overturned.  Of course it is likely that many cases overturned by the Court of Appeal will then progress to the House of Lords in order to discover whether their new decision is acceptable in the eyes of the law but some cases will not and every single case in which it is accepted at the level of the Court of Appeal that the change was appropriate will be more money in the public coffers and more time for Lords to deal with issues where they are actually needed.

Scandalising the Judiciary

I usually try to keep things fairly light hearted on the mindsplurge but every now and then I find something a little bit more serious that I do not think has been adequately dealt with in the press.  Such a story is that which follows regarding the offence of ‘scandalising a judge’.

A very recent case that was brought against Peter Hain MP by the Attorney General of Ireland John Larkin regarded criticisms that Peter Hain had made in his autobiography about Lord Justice Paul Girvan’s handling of the judicial review of Hain’s decision to appoint a police widow, Bertha McDougall as interim victims’ commissioner for Northern Ireland during Hain’s time as Secretary of State.  There was criticism in the press of the decision to bring the case against Mr Hain.  The Guardian has in a blog said that the public should have the right to criticise the judges to ensure that justice was always done.  An old Latin saying goes “Quis cusodiet ipsos custodes?” – Who keeps the keepers.  It has been adapted more recently by the English writer of graphic novels, Alan Moore, who wrote the book ‘The Watchmen’ (since made into the film of the same name) as, “who watches the watchmen?”  I do agree with this to an extent but I kind of think that the Guardian has missed the point.  In their handling of the story I felt the Guardian had taken a viewpoint that was sympathetic of Mr Hain and seemed to give the impression that the offence of scandalising a judge was archaic and should no longer be prosecuted.

I was a little bit disappointed by the coverage that the case got in the national press considering that it dealt with such an important issue.  Aside from the Guardian’s ostensibly biased report and a couple of very matter-of-fact reports that were delivered by the BBC, Sky, and the Independent there was little mention to be found of the story in the national press as far as searching Google revealed.  Many small local papers had carried the story but it was as though no one really cared despite the importance of the case.

Admittedly Mr Hain’s book: ‘Outside in’ is hardly going to rock the world by criticising one judge but the fact that it set up a precedent whereby it would be open season for contempt of legal decisions made in the courts was extremely worrying.  I do not think that Mr Hain has really done anything wrong; he made some comments about Lord Justice Paul Girvan’s decision that could have been slightly better worded but was quite gracious about his intentions when he clarified exactly what he had meant.  Of course once he had clarified the point he had wished to make the case was dropped.  A.G. John Larkin had no wish to prosecute and bore no ill will to Mr Hain but it is important to ensure that the court system is not criticised in such a way as to create scandal and to undermine the work that they are doing.

Mr Hain’s publisher proclaimed that the decision to drop the case was a triumph for freedom of expression but really freedom of expression was never under any threat.  The public’s right to criticise the judiciary was never in any danger.  There is simply a right way to go about it and a wrong way.  As soon as Mr Hain explained how his criticism was intended A.G. John Larkin backed off.  It has to be remembered that everybody is allowed to have an opinion.  That is a quality of our life in a liberal democracy.  The position of Mr Larkin and Mr Girvan was merely that it was unacceptable to categorically state that Mr Girvan’s decision was wrong.  To do so would have been the voice of a senior political figure undermining the judiciary.  That would have been utterly unacceptable.  As soon as Mr Hain coached it in different terms to clarify that he had:  “never qualified his (Lord Justice Paul Girvan’s) standing and motivation as a judge before that case nor have I done since.  My words were never intended to, not do I believe that they did, in any way undermine the administration of justice in Northern Ireland or the independence of the Northern Ireland judiciary…” then the case was dropped.

The A.G. Mr Larkin said, “If the matter had been qualified or explained in the way it now has and only now has, these proceedings would not have been taken.”

There is no victory for freedom of speech here so the triumphant smugness of biteback publishing is wholly inappropriate.  I am offended that so many politicians should have leapt to the defence of Mr Hain.  Really he should have known better than to publish his criticism using the words that he did.  As a politician his craft is rhetoric and he should have been able to avoid this before it had even happened if he had been more careful with the way in which he expressed himself.

I do hope that this case does not lead to new legislation proclaiming this offence to be obsolete.  There is no reason to lose the offence of scandalising a judge.  It would serve no purpose to repeal such a law.  As has been seen in this case it has not infringed on Mr Hain’s freedom of speech, it has merely encouraged him to choose his language a little more carefully.  The purpose it serves in protecting the judiciary from aggressive criticism is a purpose that is of the utmost importance to law and order.  In this modern age when people are worried about hoodies, drug addicts and crooks the last thing we need is to undermine the operation of the judiciary just so that politicians can be lazy with their use of the language.