Monthly Archives: July 2013

The bedroom tax and Laws’ Law of Non-Intervention

The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.

In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.

Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.

Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).

His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:

“The cause of constitutional rights is not best served by an ambitious expansion of judicial territory for the courts are not the proper arbiters of public controversy.”

Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.

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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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