In the Bar after the @pictfor meeting last Monday, I met for the first time, Monica Horton, the curator of the iptegrity site. It was her review of the DE Bill Judicial Review that inspired me to read the judgement and write my own review, which is published on this blog in shortish and longer articles. I have had some time to think about the articles and the judgement since writing the articles and I and Monica compared notes. BT and Talktalk are appealing the ruling so it’s not over yet. The three most troubling areas to me are the rulings on what the Judge referred to as “careful balance”, the review of the impact analysis and the Privacy rulings.
A central tenant of the UK constitution is “Parliamentary Sovereignty”. It means that Parliament can do what it wants. Axiomatically it cannot act illegally. This is now and has been for while constrained by treaty obligations but in the UK, judicial review has mainly been about the conduct of government business. The defendants have been the Secretary of State in lieu of the government department, or more famously local authorities, and people go to court to get bureaucratic decisions over turned because the law is not being followed. The precedent and practice of the UK legal system placed a significant road block in front of any judge in striking down laws as the US Supreme Court and French Constitutional Court has done from time to time.
Judge Parker argued in his judgement on several occasions, most importantly while considering proportionality, that the judgement between one course of action and another, the balancing of the, the , the and the in the creation of statute law was fine and that “careful balance” was required to make a decision. He argued that where “careful balance” was required, it should be exercised by elected politicians and not a Judge. He showed a restraint not exercised by many of his predecessors.
I just wonder if he has placed a duty on Parliament to demonstrate that it has exercised “careful balance”. I argued in my earlier articles that I wouldn’t want to argue that the extraordinary process by which the DE Act became law, with a truncated debate in the House of Commons, and passage after a general election had been announced was the exercise of “careful balance”. The Government argued that it had undertaken a consultation exercise , arranged for significant time to debate this in the House of Lords and conducted an impact analysis which again now seems to be a necessary part of the legislative process, at least for Government proposed legislation. None of this negates the fact that the House of Commons, the only elected parliamentary body did not have sufficient time to exercise “careful balance”.
Is this now a requirement for Parliament?
Have the courts, and legislative practice weakened the concept of parliamentary sovereignty?
Must Parliament now prove it has exercised “careful balance”?
When I wrote my reviews, I merely reported on the Judge’s statement that he felt the impact analysis to be comprehensive and that little could be added, and that it supported the passage of the law, or required “careful balance” and hence legislative not judicial review. Personally I’d like some guidance as to how bent an impact analysis needs to be before it would invalidate a law. The impact analysis does not cover the Welfare Economics argument which is that the monopoly profits of the copyright traders would create a greater public good if spent on other stuff. The court admits that it is not good on evaluating the so-called lost income of the copyright traders and neither is the impact analysis. The impact analysis does not cover the international trade impact of the DE Act. So how fucked does an impact analysis have to be before it invalidates a law. Is this now another constraint on Parliamentary Sovereignty?
The third area of concern to me is the ruling on Privacy. Basically, the right to privacy and the duty to find and punish criminals was compared. Our internet addresses are private data, but it seems that the copyright holders have aright to pursue criminals. The problem in my book, is, how do the copyright holders, who now have the right to breach the privacy of both the innocent and allegedly guilty, publish their processing methods, which is required under law? How do they collect the actions of citizens legally to notify the alleged infringers’ service providers? The judge ruled that this is a permitted processing method, but surely they’ll still need to register as data users, and permit their data subjects to place data protection queries. How is that going to happen? I am deeply unsure that the copy right holders can put themselves in a position to legally collect information. Also none of this addresses the issues of in the UK, the right to silence; it is another way in which the DE Act privatises crime prevention. The privacy issues bleed into the right to a fair trial.
One of the reasons we need a robust privacy law, is that we need to explore the track record of entrapment by copyright holders. Some copyright holders have published honeytraps and own the hosting software, which allows them to entrap so called Pirates. This must be made illegal. Some large corporations, have enforcement arms pursuing the victims of their marketing divisions.
Hollywood’s cunning attempts to privatise the criminal justice process in the pursuit of copyright crime, most egregiously breaches the US Constitution’s 4th Amendment,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
by allowing private actors to breach the privacy of alleged infringers. It also contravenes the 5th, the right not to incriminate oneself. We have similar rights in the UK and Europe. The Parker ruling does not make it clear how these private actors can meet the needs of European privacy law and legally spy on citizen’s internet usage.
Judge Parker ruled the law legal because, he saw copyright enforcement is a fundamental right on a par to citizenship privacy & free speech, he also saw hunting crime as allowing exceptions to citizen rights, and that elected politicians trump judges.
Interestingly I wonder if he has created a duty for Parliament to exercise careful balance and to create evidence based law?
This article has been written in a hurry, apologies, I want these ideas out there so I can continue the conversation but I have not been back to the judgement to xref my statements as to its contents, I have worked from my notes and, in particular, I really need to go back to the impact analysis words in the judgement, which starts at S. 247