This is my (personal) report on the Media and Communications subject section at the annual conference of the Society of Legal Scholars, held in Cambridge this week. For those not familiar: the SLS is the organisation for legal academics in the UK and Ireland, and this was its 102th annual conference. As well as plenary sessions and an AGM, the main business of the conference is a range of subject-specific parallel sessions, of which Media and Communications is one. A related area is Cyberlaw, but this year they ran at different times in the week (the conference is divided into groups A and B), which did appear to increase the attendance at both. During this year’s meeting, I was elected as the fourth convenor of the section, taking over from Mike Varney (and before him Tom Gibbons and before him Eric Barendt) – a quite daunting line of succession!

Session 1 had a focus on information – although in very different ways. Damien Carney (Portsmouth) opened up with ‘Truth and the unnamed source’, considering the importance of truth (and objectivity) in the law and ethics of the protection of sources. He looked at the recent decisions in National Post (Canada) and Financial Times v UK (the latest instalment in the Interbrew case), making particular points about the reassessment of who the privilege on the protection of sources ‘belongs’ to, with the Canadian and European courts heading towards an emphasis on the rights of the public to know (the truth?). Lawrence McNamara (Reading) followed with his paper on terrorism and disclosure obligations, considering section 38B Terrorism Act and the various laws that preceded it. Despite very few cases on the matter, the provision has an impact on the practices of media organisations, although there are differences between the thresholds applied within organisations and as apparently required by law. He also debated the rights and wrongs of a media exemption and how necessary it is to take a legal approach in any event. Finally, Neil Richards (Washington University, St. Louis) presented his theory of intellectual privacy. He distinguished between ‘tort privacy’ and ‘intellectual privacy’, particularly on the difference between the impact of each on freedom of expression, suggesting that the former might be confined to ‘truly shocking’ disclosures, but the latter was important because it protects the process of considering and forming ideas. Interestingly, there was a strong technological dimension here, given the role of search engines and of surveillance technologies. He proposed four key aspects of the right to intellectual privacy: thought and belief, the right to read, spatial privacy and confidentiality, and also considered the need for a horizontal approach rather than a negative constitutional doctrine alone.

Session 2 had a European theme, with papers from Irini Katsirea and myself. Irini’s presentation was about product placement, specifically the implementation of the new rules set out in the Audiovisual Media Services Directive (AVMSD) in two jurisdictions, Germany and the UK. She highlighted some of the vaguer aspects of the Directive, such as the criticism (but not outright ban) of thematic placement, the conflict between provisions on surreptitious commercial communications, undue prominence, and limited scope for allowing product placement. The UK has excluded certain genres (above and beyond the Directive), but only for broadcasters under UK jurisdiction, again because of the Directive. Germany has required identification of PP in acquired programming, but without an offence of breach of this duty. The UK and Germany took different paths on thematic placement – unclear in the former, banned in the latter. The minimal requirements of the Directive on notifying viewers were also considered. In the discussion of the paper, we also wondered to what extent product placement was actually present in EU-origin programmes since the Directive. My own paper was on the European Convention on Transfrontier Television, a Council of Europe instrument dating from 1989 but currently in serious trouble after an aborted attempt to amend it. After explaining the history of the relationship between it and the EU’s media law directives, I discussed how the European Commission objected to the amendments that would have brought it up to date with the AVMSD, assessing the legal basis for this objection (external powers of the Union) and how this was debated in various fora. I also looked at the reaction of the UK, which had in the 1980s been a strong supporter of the Convention, but had some problems with the current amendments and mixed feelings about the Commission’s intervention. I concluded with a wider discussion on EU-Council relations and whether other areas (such as media pluralism and impartiality) might fare in future developments. [If readers will permit a further note: I have a draft paper on which comments would be appreciated, not available online but happy to supply copies if you are happy to offer your views: email me].

Session 3 was about recent developments, both with a European context and a British focus. Tom Gibbons (Manchester) looked at the relationship between reputation and privacy within Article 8 ECHR, and the differences between English law on defamation and on privacy. He was reluctant to describe what is happening in Strasbourg as a doctrine, given the inconsistent positions expressed by differently constituted courts, but discussed a number of defamation-type cases where the engagement of article 8 was taken for granted. Nonetheless in Karakó v Hungary there may have been a move away from this position, with some importance attached to internal and external notions (he considered, later, whether reputation is external and privacy is internal). English cases on injunctions (ZAM, Terry) have added comments on the importance of reputation, and the Supreme Court’s decision in the freezing orders discussion discussed ECHR decisions and the need for a serious threshold. Are we moving towards a Re S-style ultimate balancing exercise? Is the justification defence to defamation threatened by an article 8 approach? What about Reynolds? He also argued that the ability to evaluate others is important and subsuming reputation into article 8 may be difficult to reconcile with this. Following on, my UEA colleague Michael Harker presented his paper on vertical restraints in broadcasting, or why ‘content is king’. As well as a thorough explanation of the market structure of pay-TV in the UK, he focused on Ofcom’s intervention regarding sports channels, particularly the requirement on Sky to offer its channels to other platforms (e.g. digital terrestrial) at a regulated price. Michael explored the differences between ‘sectoral’ and ‘competition’ approaches, and the remedies available in both cases. The possible consequences of intervention were outlined, including the need to protect innovation and also the policy goals of (for example) promoting broadband uptake.

Finally, session 4 was a pair of case studies. Ewa Komorek (my former colleague as a doctoral student in Dublin) reported on the ups and downs of Polish media law. She looked at three particular issues: ‘Rwyingate’, politicisation of public service media and problems with press freedom and criminal law. The first was a major national scandal regarding the proposed takeover of a private television channel by a major media company, and the disclosure of an attempt to exchange ‘a law for a bribe’, as a national newspaper reported. This led to a major report on the activities of the ‘group in power’, the resignation of a government, and wider discussion of the adequacy of the legal framework on media concentration and mergers. The second is also about the relationship between politics and media, with Ewa explaining the structure of the public service broadcaster and recent changes that may (or may not) increase the independence (from political influence) of the broadcaster. Finally, she looked at a range of criminal provisions, including those about insulting the president (imprisonment up to three years and no defence of provocation!) and defamation itself, despite criticism from the ECHR on the impact of these provisions. She was followed by Eliza Varney (Keele), whose presentation was about disability and ICTs after recent changes to EU law, particularly the 2009 amendments to the electronic communications directives and EU equality law. Although some progress has been made through the updating of universal service provisions, she pointed to outstanding issues such as the consumer-driven approach to regulation, the focus on sensory disabilities (e.g. as compared with cognitive), and the weakness (after industry lobbying) of some provisions. Eliza argued for a universal design approach and considered whether a disability-specific provision of general equality law (particularly if the proposed directive on discrimination re access to goods & services does not proceed) might be of assistance.

I was off for two weeks earlier in August and came back to work on Monday 22nd. Normally I try to provide links to interesting stories in my field on Twitter (@macsithigh), but for that period I had a semi-detox in terms of using the Internet.

I did start checking out what I had missed when I got back , but that was quickly replaced by catching up with various things – finishing off reading lists for the new Masters modules, important bits of paperwork for the BA project, introducing a group of A-level students to celebrities and the law, typical first-week-back fare. Anyway, better late than never, here are some August links (no attempt at being comprehensive or even highlighting the most important, just a selection of things that caught my eye).

• ‘When Patents Attack‘ – an episode of one of my favourite radio programmes, This American Life on patent trolls and such things
• The brilliant report by Charles Raab & Benjamin Goold for the (UK) Equality and Human Rights Commission on privacy rights
• ‘Europe takes its own path on privacy rights‘ (New York Times 9 August 2011)
• John Battelle and Jonathan Zittrain return to the future of the Internet
• President of the TV channel Syfy (I still don’t like the name…) discusses the links between television and video games

Notable court decisions (some of which have gone straight into the reading lists)

• Tucows v Lojas Renner [2011] ONCA 548 (domain names)
• In re: Literary Works in Electronic Databases Copyright Litigation 2nd Circuit CA, 17 August 2011 (came to me via and thoroughly explained by James Grimmelmann
• Pulte Homes v Laborer’s Int’l Union (6th Circuit CA, 2 August 2011) – another scary interpretation of the Computer Fraud and Abuse Act, this time about an email-writing campaign during a trade dispute (see part II-B); found via Techdirt
• A pair of jurisdiction cases from the 9th Circuit discussed by Eric Goldman.

And finally, some new books:

• Garry Crawford, Video Gamers. I saw Garry present some of his work at the MeCCSA conference in Salford earlier this year, and he has an interesting take on the gaming world, drawing upon some of the theoretical spats over how to deal with gaming from an academic point of view, but paying particular attention to gamers themselves. Looks like the book does all this and more.
• Mark Kermode, The Good, the Bad and the Multiplex. I’m a long-time listener to Kermode’s radio show (with Simon Mayo) and I’m looking forward to reading this, particularly on the changes in the exhibition wing of the cinema industry; he’s speaking here in Norwich (as part of a national tour) later in the year although tickets aren’t cheap. The book’s on pre-order anyway.
• Robert Levine, Free Ride: How the Internet Is Destroying the Culture Business and How the Culture Business Can Fight Back. Widely reviewed during the month, I’m think of pairing this with Chris Anderson’s Free, although I need to read it for myself first..

Here’s a copy (PDF 152K) of the letter I sent to the Copyright Review Committee in Ireland (chaired by Dr. Eoin O’Dell), after a helpful extension to the deadline. It’s a short submission, although I hope to write something more detailed on the substantive issues when the Committee circulates its consultation paper this year.

Last month’s decision of the US Supreme Court in Brown v Entertainment Merchants’ Association (PDF) (formerly Schwarzenegger v VSDA) has attracted a lot of attention.  For some academic background on the story leading up to the case, see Rousse’s thorough ‘Electronic Games and the First Amendment’ (SSRN), or my own piece of last year, ‘The regulation of video games: past, present and future‘.  All the filings in the case are available via SCOTUSblog.  This blog post, written in honour of what was apparently Video Games Day in the US last Friday, brings you some comments of my own – bits of this have appeared previously in a nice piece by Ben Maxwell on Edge Magazine’s website, available here.  I’ve used the excellent coverage of press statements by various parties at GamePolitics.com for many of the added links.

The most significant thing about the decision to strike down California’s law on the sale of video games to under-18s was how clearly it was a First Amendment case;  the court was particularly firm in arguing that games were protected in full by the First Amendment.  Scalia (for it is he who writes the majority opinion) goes to great length to compare video games with other forms of expression (from comic books to movies), and even highlights the degree of gore found in the clearly-acceptable Snow White, Hansel and Gretel  and Cinderella, not to mention Homer’s Odyssey, Dante’s Divine Comedy and Golding’s Lord of the Files.  The interactivity of good fiction is used to dismiss the claim that interactive games deserve special legal attention.  To some extent Breyer’s dissenting opinion answers this (although see the Citizen Media Law Project’s blog’s puzzled face at how Breyer feels about the First Amendment), as does aspects of Alito’s concurrence (which reads more like a dissent, and anyway Scalia has four votes as well as his own (from the ‘liberal’ wing!) already, so a majority without the separate opinion).  (Thomas also writes a dissent, but it’s about the lack of constitutional rights of under 18s as a broader principle).

Not only does this confirm that games are being taken seriously at the highest legal levels, it also placed a heavy burden on California to justify the restriction.  With this in mind, the court was not persuaded in the slightest by the evidence put forward regarding a link between gaming and aggression, which must come as a disappointment to those who have been arguing these theories for some time.  The Empirical Legal Studies blog has a good piece on the evidential issues.  While the need to be aware of specific issues for under-18s was noted, even this was not enough to justify the intervention.  However, it’s interesting to consider whether there is a gap opening up between the approach of the court to sex and to violence (or indeed to language); the fact that the decision to hear Fox v FCC in 2011/12 (this time on First Amendment grounds alone; last time the focus was on administrative law) was announced on the same day does whet the appetite.

In the US, the decision means that the self-regulatory system (the ESRB) will continue to be the main form of video game regulation for some time, and other states that had considered following California’s lead will probably cease their efforts.  The ESRB pointed to the decision as an endorsement of its system, although there were some harsh words in concurrence and dissent regarding the effectiveness of the labelling system.  I was particularly interested to see the response of the State Senator who proposed the original legislation, Leyand Yee, who focused on the corporate power of the games industry being able to continue unchecked.  I don’t agree with a lot of Yee’s points in the press release, nor with separating video games from other forms of protected expression, but there is a point about accountability and indeed power when the anti-regulation industry is happy to support and fund regulation as long as it is the regulator.

Meanwhile in the UK, we already have a mixture of self-regulation and statutory control.  Most games are exempt, while some (either on the grounds of content – gross violence, etc – or format – significant video content) are presently classified by the BBFC under the Video Recordings Act.  Changes are on the way though (as discussed in my 2010 piece), with two simultaneous amendments to the VRA – the extension of statutory regulation to a wider range of games, and the possibility of designating a separate body for the classification of video games.  Taken togther, this will mean the use of the (existing and non-statutory) Europe-wide PEGI system for statutory classification in the UK, once the relevant orders (envisaged by the Digital Economy Act) are passed.

The High Court has already had one opportunity to consider video games, in a 2008 judicial review of the decision of the Video Appeals Committee (itself an appeal against a BBFC refusal to classify) regarding Manhunt 2, [2008] EWHC 203 (Admin).  On that occasion, the Court found that the VAC was not interpreting the ‘harm that may be caused to potential viewers’ provisions of the Video Recordings Act (as amended) correctly.  The ECHR’s concept of harm was mentioned, albeit briefly.  In future cases, one imagines that the detailed findings of the American courts may be useful (albeit of persuasive value only and subject to the usual concerns around the First Amendment in non-US courts).  The impact of a regulatory decision on the right to freedom of expression as contained in the Human Rights Act is clear.  Of course, the BBFC already states that it takes the HRA into account (alongside other statutory provisions) and one assumes that this will continue under the Video Standards Council for PEGI.  The VSC should declare, immediately on taking up its duties, that it will act as if the Human Rights Act applies to it (which it most likely does) and it should go about its business in a responsible fashion, including asking to be subject to the Freedom of Information Act and publishing its decision-making and appeal procedures.

UK developers may be relieved that they do not have to deal with a California-only system as there are already a number of different systems in use around the world, although they will still need to be aware of differences between the ESRB (US) and PEGI (European) systems of classification.Of course, Germany remains outside PEGI, and Australia remains a major ‘market’ for games with a standalone system for classification, which – in essence – has a ‘top category’ of suitable for 15 and above, which means that games classified for over-18s in other jurisdictions may not be acceptable in Australia.  This has been under review for some time.

During 2011/12, I’ll be working (among other things) on a project on media content regulation in the UK, with a particular focus on complaints about broadcasting.  It’s funded by the British Academy Small Grants scheme, and I’ll share further information once it is up and running.  The project includes analysis of decisions (with the help of a research assistant), interviews, and historical/archive work.  Here’s the abstract:

Despite the changes brought about in relation to technological convergence, the proliferation of television channels and the availability of content on the Internet, content regulation remains an important issue for much of the UK media. The point of entry for legal scholarship in this area tends to be the overarching statutory controls (e.g. the passing of the Communications Act 2003) or human rights law (the consequences of licensing or prior scrutiny, the impact of controversial decisions on freedom of expression). This study is an attempt to consider, with a particular view to the apparent changes in the media industries and in audience behaviour, the real impact of content regulation in situations where it is more routine (and less dramatic) than the occasional but well-scrutinised times when Parliament assesses principles or a court reviews a particular determination. At a time when diverse laws are under review, this work would contribute, through analysis of decisions in particular, to a debate of wider public interest, informed by scholarship in media/cultural studies.

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Somerset and the West Country are favourite retirement areas for wrinklies of all shapes and sizes, mainly from oop North, where the climate is less agreeable.

It is akin to the Elephant graveyard, where old bulls and cows come to die, and with the advances in medical science, are taking longer and longer to do so.  In the meantime, they clutter up the check out tills at their local supermarket, and drive home at 4 mph.  Bless them!

Summer time is also a time when the warmer weather brings out the worst in the Great British bull and cow, and no more so than the outfits on show in public.  Whilst this phenomenon is not confined to wrinklies, they do tend to stand out from the herd like a sore toe.  I have learnt to live with singlets, tattoos, shorts displaying legs that should never be on show, even in the privacy of the home, but I draw the line at bare horny feet, with discoloured and unclipped nails, encased in Resurrection sandals.

And where is Health and Safety when you need them most?  It cannot be hygienic under any circumstances for these feet to be paraded when food is being sold.

With this in mind, I have been researching the law on indecent exposure, and correct me if I’m wrong, but there seem to be two separate offences.  The first is the common law offence which, in general terms, covers all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.  These are indictable offences with unlimited fines and imprisonment.

There is also an offence of exposure under the Sexual Offences Act 2003, which on the face of it, seems to be confined to the male genitals.  If I am right, then there is no offence committed if a female exposes her genitalia.  A curious distinction, and possibly sexist.

I have concluded, sadly, that neither offence covers the indecent exposure of horny feet, and more’s the pity.  But let’s not be fainthearted.  Despite the swingeing cuts in public finances heralded by George Osborne, local councils are still recruiting for completely naff jobs.  So why not a horny foot inspector with ‘on the spot’ fines?

Something needs to be done, and done quickly, to stamp out, or on, this malaise before it reaches epidemic proportions.

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It should be blindingly obvious to one and all that with the advent of the Coalition Government, there would have to be compromise between the Tories and the Liberal Democrats if a consensus was to be reached.

This meant that each Party had to abandon some of its “holy cows” which they had assiduously fed and watered during the election campaign.  With cuts in public expenditure and the priority of balancing the national books being an essential part of the agreed agenda, the change in Party policy should come as no surprise.

With this willingness to bend with the political wind comes the decision by Kenneth Clarke, the newly appointed Justice Secretary, to review our whole attitude to crime and punishment, and I for one welcome this decision.  I have argued in earlier articles that the “lock them up and throw away the key” mentality of Little England is misguided and doomed to failure, as the recent past has demonstrated.

The statistics are frightening.  In the space of fifteen years, the prison population has doubled to a record 85,000.  This is not because crime has doubled.  It is simply because sentencing courts in the recent past have been compelled to pass custodial sentences where other sentences were more appropriate.

Crime and punishment has historically been the preserve of the backwoods Tory, but not any more.  It was the outgoing Labour Government which enacted the Criminal Justice Act 2003, a disgraceful and wholly unnecessary piece of legislation, with the stated aim of making convictions easier to obtain and increasing custodial sentences by a factor of ten.

More statistics.  Approximately half of the prison population are serving sentences of 12 months or less.  It costs on average £40,000 per prisoner per annum to keep them locked up.  You do the maths as they say, and all this before you throw into the pot the enormous legal aid budget, in the region of £2 billion.

The argument advanced by Little England is that if you keep offenders locked up, it is safe to walk the street at night.  But with a few rare exceptions, every offender is entitled to release at some time in his life, before he dies of boredom in his cell, and to avoid reoffending, he needs support in the community at all levels.  Surely it is better to use our precious national resources to this end.

Allied to this root and branch review of prison law comes the clarion call to the police from Theresa May, the Home Secretary, to forget about ‘targets’ and concentrate on cutting crime.  Sadly, this message has fallen on deaf ears, the deafest being a handful of Chief Constables who clearly feel uncomfortable about any new initiative which might disrupt their cosy way of life.  Remember Ian Blair?  The enormous salary, subsidised housing benefits, an inflated pension pot, chauffeured cars, entertainment allowances and the best seats in the house, and all in the interests of serving London.

Amazingly, Julie Spence, the Chief Constable of Cambridgeshire, and one of the most vocal critics of this clarion call, stated, and apparently with a straight face, that just one third of her work is about cutting crime.  She went on to say that her task was to provide a 24/7 social service law enfarcement (sic) agency.  Worse was to come.  She had spoken to half a dozen chief constables and none had differed from her view!  Perhaps she should speak to the people who really matter – the victims of crime!  And speaking of cuts, Julie Spence would be high on my list when heads start to roll.

And what exactly had Theresa May said to ruffle Plod’s feathers?  “I know that some officers like the policing pledge, and some like the comfort of knowing they’ve ticked the boxes.  But targets don’t fight crime. Targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn’t be any clearer about your mission.  It isn’t a 30 point plan.  It is to cut crime.  No more and no less!”

Amen to that!

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Another one of those ridiculous surveys has seen the light of day. This one tells us that when women yawn, it doesn’t necessarily mean they are tired.  On the contrary, it could mean they are sexually active!  However, we are given little guidance on how to spot the difference.  Is she up for it, or is she dog tired?

Presumably nobody saw fit to include my wife in the survey, let alone get a second opinion from me.  Had these surveyors done so, they would have discovered that when my wife yawns, it means she’s tired, and on the rare occasions I have suggested a roll in the hay, I have been told firmly to put the mouse back in the house.

Talking of yawns, the High Court is on vacation, with a skeleton staff and a ‘vacation’ judge to deal with emergencies, but I am reliably informed that the newly created Supreme Court is still at it, and an example to us all.  I know this because they have recently handed down their judgment in the case of Austin v Southwark LBC, and I know you would want me to share it with you.

The justices, as they are now called, decided that a former secure tenant, who was in breach of the terms of a conditional suspended possession order but was continuing to occupy the property as a tolerated trespasser, had the right to apply for postponement of the date for possession to enable him to remedy the default, and thus to revive the secure tenancy.  But if that were not excitement enough, where the former secure tenant, and now the tolerated trespasser, pops his clogs, his right survived his death and could be exercised by his estate.

You heard it here first.  As is so often the case, the devil is in the detail, namely section 85((2)(b) of the Housing Act 1985.  For the aficionados amongst you, the case of Knightley was wrongly decided, and has hit skid row, so that’s a load off!

Talking of our lords and masters, the controversy over the Human Rights Act rumbles on.  First up to the plate came Lord Hoffmann, criticising Strasbourg of aggrandising itself by seeking to impose Pan European law. Then we had Lord Phillips of Worth Matravers, a lone voice crying in the wilderness, or at least I hope so, putting his considerable support behind the Act as the last bastion of a civilised society, and sounding wholly unconvincing.  Next came Lord Judge, the Lord Chief Justice, accusing Strasbourg of threatening to ‘assume an unspoken priority’ over English common law.  And finally, Lord Neuberger, the Master of the Rolls, warning foreign judges to show ‘a more acute appreciation’ of the independence of the English legal system. 

How many more times does it need to be said?  We don’t need Strasbourg, and we don’t need the European Court of Justice.

Too much has already been ventilated, by word and mouth, on the Human Rights Act, with proponents and opponents entrenched in their respective corners and never destined to meet half way.

In previous articles, I have advocated its repeal, and will continue to do so, despite the recent speech of Lord Phillips, the President of the newly created Supreme Court.  He argues for its retention, but he fails to persuade me.

There are essentially three issues regarding the Act.  Firstly, do we need a Human Rights Act at all?  Only if it can be demonstrated that the human rights of the subject were not satisfactorily protected before the Act can a compelling case be made for its retention.  Our human rights before the Act were not statute based, but had evolved over centuries by the sensible application of common sense and fairness.

Secondly, and Lord Phillips would have to accept, its implementation, especially by the High Court, has led to some curious and contradictory judgments which fall far short of a ‘golden thread’ running through our judicial system.

And finally, the Act derogates powers from our domestic law to Europe, and in particular to Strasbourg.  To many, the idea that Johnnie Foreigner knows more about our human rights than we do is anathema to many, and sadly, Europe has a poor track record.

I have recently been enjoined by the new coalition government to participate in the ‘Big Society’, and I am now getting emails from David Cameron and, most recently, from Baroness Warsi.  With this in mind, and doing my bit for the economy, I recommend the abolition of the nanny state ‘no smoking’ legislation, which forbids smoking in any public place.

I concede that this ban has reduced by a small margin the number of people who actually smoke, and some modest savings have been identified by the NHS.  But consider the facts.  Smoking, as with the consumption of alcohol, is not illegal.  Cigarettes, tobacco and cigars, are heavily taxed, and this generates substantial income for the Treasury.  The latest annual figures show the total amount raised is in the sum of £10 billion, not to be sneezed at.

But it goes farther than this.  Figures suggest that as many as 300 pubs and restaurants are closing every week, the more so in rural locations, where drink drive legislation has hit the hardest.  Many customers of these establishments are prepared to moderate their drinking, but to be denied a cigarette with their favourite tipple is a bridge too far.  The suggestion that smokers should stand outside in all weathers if they want to smoke is unappealing, and in the result, they are staying home.

Pubs and restaurants also make a sizeable contribution to the national coffers, as do all successful businesses.  They are also good employers of cooks, waiters, receptionists, front of house, cleaners and the like, and all this is being sacrificed on the altar of political correctness.

Of course there are those who go to a pub or restaurant, who don’t smoke, and don’t want to be in the same room as smokers.  No doubt the owners of these establishments appreciate this, and if not, they don’t deserve to stay in business.  Surely they can be trusted to find the right combination to please all their patrons.

So my advice to David Cameron and George Osborne is to ditch the nanny state, and like human rights, to leave it to common sense and fairness.

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You couldn’t make it up if you tried.  Picture the scene.  Earlier this week, Mr. Justice Mitting presided over a Special Immigration Appeals Commission to hear the appeals against deportation of Abid Naseer and Ahmed Faraz Khan.  Both men, Pakistani nationals, had come to the United Kingdom on student visas, and within a matter of months, had immersed themselves in terrorist activities.  Naseer in particular was described by the judge as “an al-Qaeda operative who posed and still poses a serious threat to national security.”

However, after mature reflection, the judge ruled that even though deportation was conducive to the public good, this was not possible because of the risk that he might suffer torture at the hands of Pakistan’s Inter-Services Intelligence Agency [ISI].  This would breach his human rights under the Human Rights Act 1998.  His human rights?!  What about ours?!

Not surprisingly, Theresa May the new Home Secretary, was ‘disappointed’ by the ruling!!!

I have argued for some time that we do not need to ally ourselves to the European Convention on Human Rights and Fundamental Freedoms.  The fact that we did had little to do with English human rights and much to do with Tony Blair’s European agenda.  In 1997, after 18 years of Conservative Euroscepticism, Mr. Blair wanted to put down a marker and show solidarity with our European partners, and this was a good way to start.

I remember when the Act came into force, the judiciary to a man were appalled and wholly unpersuaded of its need.  Our human rights have developed over the centuries, going right back to the Magna Carta, and by 1998, nobody but Blair was arguing that they needed a European shot in the arm.  They were right, and the consequences of the Act have brought nothing but trouble and some ridiculous rulings, the most egregious of which having just been made by Mr. Justice Mitting.

In the past few weeks, immigration has been near the top of the most pressing concerns of the electorate.  Some, like the Rochdale ‘bigot’, voiced them, others, in the best traditions of the Silent Majority, were not so forthcoming, and the debate stuttered and faltered during the election campaign, immigration being the word that dare not speak its name.

The new coalition government has a serious conflict of interests to resolve if the likes of Mr. Justice Mitting are to be put back into their box.  The Conservatives campaigned for the abolition of the Act, the LibDems for its retention.  There has been some lofty talk of a Bill of Rights, but within the coalition there is a circle that needs to be squared, and for my part, the sooner this poisoned chalice is dashed to the ground, the better for sanity and the safety of our fellow citizens.

As for the ruling itself, there are three obvious consequences.  Firstly, a small fortune will now be spent by the police in keeping these terrorists under constant surveillance, and to add insult to injury, a third Pakistani from the same stable who was deported, also won his appeal in absentia, and is now free to apply to return to this country.  

Secondly, Pakistan has been branded a pariah State.  Yet this country is at the forefront of the war against terrorism in its own back yard, and needs all the help and support it can get.  Mr. Justice Mitting was told, but chose to ignore, that of the eight other detainees arrested by the police last April, all eight had returned voluntarily to Pakistan and were living unmolested by the ISI.

And finally, what of our own credentials?  It was not so long ago that the Press and Media were full of graphic accounts of our complicity in “extraordinary rendition.”  So when we ask for the extradition of alleged criminals and fugitives from justice, we could be met by the same absurd reasoning applied by Mr. Justice Mitting, namely that we are a pariah State with a recent track record in torture, in which case our application will be refused.

Somebody in government needs to do something quickly before we become the laughing stock of the civilised world, and an apology to Pakistan may not come amiss.