Cuts to Legal Aid (or how to kick people when they’re down).

The Coalition’s snappily named Legal Aid, Sentencing and Punishment of Offenders Bill will be debated in the House of Commons tomorrow.  Now, as an opening sentence, I appreciate that that wasn’t the most inspiring you’ll ever have read, or even that I’ve ever written, but stick with me. Legal Aid isn’t glamorous, but it does matter.

I’m going to witter on about civil legal aid, and I have to start by declaring a possible bias. The last 6 years of my career have been largely spent in Citizens Advice Bureaux so I do have a bit of an interest in how civil legal advice services are provided and paid for.

Essentially at the moment, if you have a sufficiently low income you can get legal aid for advice on debt, housing, welfare benefits, and employment issues (amongst a whole host of other stuff – I’m concentrating on the areas where my expertise lies). This isn’t money that you as the person getting advice ever see – it is claimed by your advice provider and, for these areas of law, is generally paid at a fixed rate whatever the complexity of the advice you require. Some clients will receive only advice, but many will also be assisted with practical actions like negotiating repayments with creditors, applying for bankruptcy, appealing an incorrect benefit decision, or challenging liability for a debt.

Under the new proposals, there will be no legal aid available for welfare benefits cases or employment, and housing and debt advice will only be funded where there is an immediate risk of a client losing their home. This seems to me to be insane for a whole set of reasons.

Firstly, think about a situation where you’re in a medium amount of debt. You’re managing to pay your rent, but you’re behind with the utilities. Your credit cards are spinning out of control. Maybe you have a personal loan for a car that you’re struggling to pay. People find themselves in this situation for all sorts of reasons. The loss of a job, a sudden health problem, the loss of a partner, or simply spending more money that they have in their bank accounts. The point is that it happens, and when it happens people can find themselves bombarded with different advice and information from a whole set of people who either don’t have a clue themselves or are completely biased. So your bank says, “Take a consolidation loan.” Your credit card company threatens to send in bailiffs so you feel pressured to pay them first. Your utility company offer to install a prepayment meter to stop you getting further behind, but the tarriff looks much higher than you’re paying at the moment. Your mate says, “I borrowed from this website. They’re brilliant… oh, I’m not sure what this interest is, but they give you the money really fast.” What you need is some impartial advice, so where do you go? Maybe your local CAB or Law Centre or an Advice UK centre in your area? And what if they said, “Sorry, we can’t help you until you stop paying your rent, and your house is at risk”? That doesn’t sound like the best approach to me, but looking at the new Legal Aid proposals, that seems to be what the government is advocating. Good advice is very often about avoiding a crisis; in the new system you need to be having a crisis before any advice or assistance can be offered.

Welfare Benefits is another area of law where the coalition bill cuts provision. Actually, it basically gets rid of Legal Aid funded advice in welfare benefits alogether. The rationale here seems to be that the benefits system is significantly straightforward for people to navigate themselves. This is a belief that can only possibly have come from a group of people who have never had to worry themselves about actually applying for or living on a benefit in their lives. The British benefits system is labyrinthine in it’s complexity. The “basic” textbook on the subject used by most advice agencies (CPAG’s rather weighty Welfare Benefits and Tax Credits Handbook) runs to 1500 pages and is by no means a compete overview of the subject. And the Department of Work and Pensions, who administer the bulk of the system are by no means above confusion themselves. So where they make an error and refuse a benefit incorrectly, good advice on how to appeal is essential. This isn’t a luxury. This is about people’s basic rights and entitlements to a subsistence level of income.

To take the example of Employment and Support Allowance, which is paid to people with reduced capacity for work because of health problems. It has been estimated that around 40% of claimants who are refused benefit have it reinstated on appeal. The appeals process can be daunting and requires detailed evidence of claimant’s health conditions. To suggest that vulnerable claimants, some with multiple complex health issues, should navigate the process without advice is, at best, naive. At worst, it’s a cynical attempt to cut the benefits budget by discouraging claims and appeals.

We live in a country where access to certain basic services is accepted as a right, and we are immensely lucky to be in that situation. We expect our children to have access to education. We expect to be able to access healthcare. Changes to those basic services are highly controversial and, rightly, hotly debated. Somehow, we don’t seem to view access to justice and access to advice as having the same level of importance.

I’ve heard politicians characterising legal aid as a scheme for putting money into the pockets of already wealthy solicitors, and suggesting that, in true Big Society style, the voluntary sector is ready and waiting to fill in the gaps. That’s absolutely not my experience.  Much of the sort of work I’m describing is already done in the voluntary sector. Voluntary sector doesn’t mean free. Even volunteers need buildings, resources, heat, light, supervision, training, administration. A lot of the work described is highly specialist, and to ensure continuity of service and the required level of expertise, very often has to be done, at least in part, by paid workers.

The main reason a lot of this work is already done in the voluntary sector is that legal aid funding doesn’t allow for much (any!) profit margin. It’s only practical if you are operating on a not-for-profit basis. And these cuts will hit the not-for-profit sector hard. The Minstry for Justice has estimated that the voluntary sector will lose 97% of its current legal aid funding. That’s potentially catastrophic for free advice services across the country. You may never have needed to use one of those services. You may be in a position where you can afford to pay for a solicitor, but not everyone is, and I don’t believe in a society where justice is only available to the rich.

There’s lots of other worrying stuff in this bill – potential cuts to no-win, no-fee agreements jump out. The potential effects on victims of domestic violence are another big concern. If you agree that this is a worry, there is still stuff you can do. You can contact your MP directly – you should be able to find their details here: http://findyourmp.parliament.uk/. You can either ask them to vote against the bill altogether, or perhaps support one of the Lib-Dem amendments which aim to protect legal aid for the most at-risk people.

You may not agree with me. You may think that the level of austerity cuts needed justifies these changes. You’re wrong, but totally entitled so to be. And so, I shall desist.

Come back later in the week (or, you know, maybe next week) when I’ll be getting all sci-fi/fantasy-ish and reviewy. I’ve got books by Neil Gaiman, Jasper Forde and Kate Johnson on my “just read” pile and I’ll be telling you what I thought about them all. From legal aid to fantasy fiction in a single bound. As ever, if you like eclectic in your bloggers, do feel free to subscribe.

Where I think about whether referenda are ever a good idea…

This afternoon in parliament MPs will be debating whether to offer the British people a referendum on our future in the European Union. There’s minimal chance of the pro-referendum group winning the vote, and if they did it wouldn’t necessarily be binding on the current government, so the debate itself is only really interesting to political nerds of the highest order, who can work themselves into a state of geek-frenzy debating whether the number of votes against the party line should be viewed by the respective leaders as an irrelevance, an irritant or an actual embarrassment.

The whole debate does raise a bigger question though. Are referenda themselves a good idea? Referenda – a single vote on a single issue – can in many ways be seen as the purest form of democracy. There’s a decision to be made. People vote. The majority view wins the day. Everyone has a chance to have a say, and everyone’s vote is weighted equally.

But I have some reservations. The UK is a representative democracy, not a direct democracy. We have opted for a system whereby we all go out on an appointed day and pick people to represent us. We then get periodic opportunities to get back together and pick someone new, just in case the first one turned out to be a useless, unimaginative, expenses-fiddling, faceless party drone. To switch between one form of democracy and another seems problematic, and it seems problematic for reasons. Those reasons are fourfold.

1. MPs get to avoid responsibility

And this is probably the main thing that drives governments to have referenda in the first instance. It’s not that they genuinely can’t decide. It’s that deciding is difficult and any decision will be unpopular with someone. A referendum means that Prime Minsters and cabinets don’t have to be responsible for the decision. In 1975 Harold Wilson supported continued UK EEC membership, but much of his cabinet and his wider party disagreed. The referendum saved them from having to make a decision, allowed Wilson to placate his anti-European colleagues and also strengthen his own position by demonstrating public support for his stance. Britain was already in the EEC, so nothing was actually changed by the exercise. Similiarly with this year’s AV referendum, David Cameron needed to form a coalition, but knew that electoral reform was a dealbreaker for both sides. Agreeing to a referendum parks the issue over there somewhere, where it’s no-one’s actual responsibility.

2. The public don’t have to take responsibility

There are a few constants in political opinion. Generally we would like better quality services at lower costs. If you ran a referendum on the question “Would you like to pay less tax?” the answer would be a clear “Oh yes!” Similarly if you asked “Would you like to wait less time for a hospital appointment/be able to send your kids to a better school/have your bins emptied every twenty minutes?” the answer would also be “Yes.” If you’re a member of the public your ideas and wants do not have to be consistent. If you’re the government you have to make the sums add up. If you want to offer more in one area, you need to either spend more across the board or spend less on something else. Voting in a referendum, simpy putting a tick in a box for YES or NO on a single  issue, you don’t have to worry about the knock-on effects. That potentially makes for really bad policy.

3. What question do you ask?

The current debate about an EU-referendum gives us a really good example of this problem. The proposal is for a three question referendum with options to: a) Stay in the EU as we are at present, b) withdraw from the EU or c) renegotiate our settlement with Europe. It’s hard to know where to start with the wrongness of that approach. Firstly, if it’s a three option referendum it’s perfectly possible that no option will see a majority, in which case you’ve really not moved forward. Secondly, what do the options mean – if you don’t really want to be part of a formal political union but do see some advantages to a broad free trade agreement, do you vote b) or c)? If you are actually a big fan of the whole united Europe concept and would like to see more integration and greater political control from the centre, then logically you should vote c), as at no point is a specified what the aim of a renegotiation would be. To hold a referendum the issue has to be stripped down to ideally two choices – it has to be black or white, no complexity, no debate, no qualifications or amendments. Again, I would suggest, over simplifying makes bad policy.

4. Where’s the scrutiny?

Parliamentary democracy is built on scrutiny. It’s the less sexy, more workmanlike element of being an MP. It’s all the select committee processes and debates on multiple amendments to bills, which is designed to mean that by the time laws are passed the majority of the inconsistencies and practical difficulties have been identified and amendments made to strengthen the bill. Referenda take out the potential for scrutiny. The issue has been pared down to a simple Yes or No and all the complications and debate is stripped away. Simplicity wins over accuracy.

So there are my four reasons that I’m deeply dubious about the usefulness of referenda in a Parliamentary democracy. Sorry it wasn’t particularly amusing. I promise I shall try to find something funny for my next post, and knock all these political musings on the head. I can’t imagine they’re doing anyone any good.

Everybody’s talking about… Bolivian migrant cats (coming over here stealing our mice).

A political spat broke out this week between Home Secretary, Teresa May and Justice Minister, Ken Clarke, of the sort that traditionally crop up between members of opposing political parties. In her party conference speech, May cited a case of a Bolivian man who successfully appealed against his planned deportation, apparently, on the grounds that he owned a cat in the UK, as evidence of the negative effects of the Human Rights Act. Clarke quickly took issue with this account, as did the solicitor who represented the individual in question.

There are problems with May’s interpretation of events, and they are twofold. Firstly, the cat was never central to the man’s right to stay in the UK, and, secondly, neither was the Human Rights Act. The decision to allow the man to stay in the UK was based on the Home Office’s own policy, not on any wider human rights legislation.

Now I could expend many paragraphs here explaining why the Human Rights Act is actually on balance a jolly good thing, and how if it does force judges to act in a slightly counter-intuitive way in some cases then that’s sort of the point. But you are intelligent people and you have access to the whole interweb and plenty of people have spent many valuable words discussing that very point on other cul-de-sacs off of the modern Information Superhighway. You have Google – you know what to do if you want to read about that.

I’m more interested, today, in the political rhetoric that leads to these sorts of Westminster playground scraps. Politicians from all over the spectrum have form in this area. Back in 1992 Labour produced a Party Election Broadcast designed to attack the Tories record on the NHS, by comparing the treatment of two patients with ear disorders in NHS and private care. It quickly came out that the broadcast had been based on the case of a specific child, and what became known as the War of Jennifer’s Ear broke out. The child’s grandfather was a Tory supporter and provided information about the case to the Conservative Party, who used it to suggest the Labour had distorted the facts of the case of political gain. Then Robin Cook and Virginia Bottomley (Gosh, was she really 20 years ago? Now I feel old) hit each other with big sticks for a bit until it was time to go home for tea. Or something to that effect.

In 2002, the case of the elderly Rose Addis became another massive political storm in a tiny wee espresso cup, when allegations were made, initially by her family, and later by Conservative MPs, about her treatment in an NHS hospital. That particular spat ended up with statements being issued by politicians, and by family members, and staff of the hospital involved. Mrs Addis was accused of being unco-operative with staff. The hospital were accused of providing inadequate care. It all got very “He said..” “She said…” and it remains all but impossible to sort the facts from the narrative ten years on.

And here’s the problem. Politicians know, as do advertisers, public relations experts and creative writing teachers, that people like stories. We respond to narrative, to characters, to goodies and baddies, much more intensely than we respond to data and graphs and detailed factual information.

So a politician trying to make a point wants to tell us a story, not deliver a lecture. And to a degree, that’s ok. Part of the politician’s job is to persuade us that they are right about what the problems are and that their solutions to those problems are the best available. And, like their readers and viewers, media outlets like a story too. They like a narrrative and a character, because they know that will interest their audience much more than a data table. But anecdote isn’t evidence, and individual stories are open to interpretation. One man’s terrorist is another man’s freedom fighter. One man’s suspicious immigrant is another’s desperate asylum seeker.

Even those closest to an individual, especially those closest to an individual, will have their own views on a situation. So Jennifer’s grandfather clearly didn’t believe that her treatment reflected badly on the then Tory government. Other members of her family, including those who initially wrote to MP Robin Cook about the case, apparently did. Once something becomes a story, the storyteller decides how to tell it. They decide who the hero is. They decide who should be the villain. Stories aren’t based on facts. They’re based on narrative and character, and those are all created in the telling.  

So telling stories is a great way to engage people, to inspire and to persuade. But it’s not a great way to make public policy. Facts are too easily distorted, accidentally mislaid or purposefully obscured. Evidence, not narrative, should be at the centre of policy making, and evidence means data, information from a wide range of sources, carefully analysed and interpreted, not one example which may or may not be typical, and may or may not be accurately told.

Happily, one of the joys of the modern Information Superhighway (how many times do you think I have to use that phrase to bring it back into regular parlance?) is that a lot of that data is out there and we can access it. The downside of that is that we can fall into information overload and end up with lots of data but no knowledge. So it’s cheering to know that there are some lovely interweb bunnies out there doing some of the sifting for us. I’m particularly fond of the following:

Channel 4’s factcheck blog: http://blogs.channel4.com/factcheck/

NHS Behind the Headlines: http://www.nhs.uk/news/Pages/NewsIndex.aspx

Michael Blastland’s Go Figure column (BBC): http://www.bbc.co.uk/news/magazine-14748007

And so ends today’s thinking. If you like, you can of course subscribe either by email or via Networked Blogs. There are lovely links just over there to your right to help you. And you can comment too, just down there, using your clever typing fingers. Jolly good.

Things that make me go Grrrrr… No. 1 David Starkey

As promised yesterday (https://alisonmay.wordpress.com/2011/08/14/what-i-read-on-my-holidays/) here is my blog post in which I attempt to make a coherent intelligent link between David Starkey acting like a stupid person and Carol Vorderman reporting on the teaching of maths in school. Here we go.

David Starkey, like pretty much anyone else in the UK who is prepared to generate an opinion on short notice, has been pontificating about the causes of the recent riots and looting across English cities. For reasons, which we will come to, I don’t really want to generate him more noteriety by encouraging you to watch his appearance on Newsnight, but for other reasons, which are also coming, I don’t feel I can rant about his comments without letting you view my primary source material for yourselves, so here’s the iplayer link: http://www.bbc.co.uk/iplayer/episode/b013h14z/Newsnight_12_08_2011/ The bit I’m talking about starts about 13 minutes in.

In his comments on the riots, Starkey opens by referencing Enoch Powell’s famous Rivers of Blood speech, and then comments that “the whites have become black”, before continuing to note that some black people (Starkey cites MP David Lammy) sound white.  After announcing that “the whites have become black”, Starkey goes onto claim that “a particular sort of violent nihilistic gangser culture has become the fashion.” This equating of “black” with “violent” and “nihilistic”, and whiteness with well-spoken respectability, has, not surprisingly, caused some controversy to ensue.

Starkey has form in this area. He has previously described himself as an “all-purpose media tart”, and courted press attention by, amongst other things, describing Scotland, Ireland and Wales as “feeble little” countries on BBC Question Time, and complaining vociferously (and to coincide with his own book being published) about the “feminising” of history. Controversy makes column inches and increases viewing figures, and David Starkey is frequently happy to oblige.

And that’s a problem, particularly with David Starkey, because he doesn’t appear on Newsnight or Question Time captioned as an “all-purpose media tart”, but rather as an “Historian.” That means that Starkey is playing the role of the academic to put across viewpoints which are deeply unacademic. Good academic historians are led by evidence. To draw conclusions evidence should be reliable, read in context and verifyable against other data or documents from the period in question. When pushed by other contributors to cite the evidence for his views in the Newsnight debate, Starkey falls back on a single text message. Really? One text? That’s all you’ve got?

One text message isn’t enough for a conclusion. Without a transcript of other texts sent by the same person in the same time period it’s not really enough to draw academic conclusions about that one person’s attitudes, style of language etc. It doesn’t get you close to the causes of a disparate event, involving hundreds of people across multiple cities. The galling thing is that Starkey knows that. He has a Phd in History. He has had a proper academic training in the handling of evidence. He is not, looking at his qualifications, a stupid man, but he appears to be a man prepared to say stupid things for attention.

A proper academic response to the riots, at this point in time, would probably start, “Well, it’s complicated..” and finish with something about “proper analysis of data from police, courts etc.” And that wouldn’t make particularly interesting television. It also wouldn’t make particularly pithy or headline grabbing public policy. It might, in the longer term, get us to a point where we understood a little bit about what actually happened last week, and what steps might be taken to minimise the risk, and effects, of a recurrence.

And that’s how I get to Carol Vordeman. (Stay with me here people – it will make sense.) The Conservative Party’s Carol Vordeman-led Maths Task Force, reported it’s conclusions earlier this month. The conclusions included suggestions such as making the study of Maths compulsory until age 18, and scrapping the Maths SAT test.

Now, I don’t want to be rude about Ms Vordeman. I have no reason to doubt her personal commitment to the improvement of standards of numeracy across the country. However, I do doubt the motivations of the Tory leadership in appointing her to lead their Maths Task Force. It seems to suggest that there was no-one available in the UK who has more relevant knowledge for this role than the lady who used to do the sums on Countdown. There are, we must logically conclude, no mathmaticians with a specialism in maths-education, no current or former teachers with ideas for reform and improvement in their specialist subject. It sounds unlikely, but why else would Vordeman have been appointed, other than that she was objectively the most qualified person for the job? It can’t possibly be because she is a media friendly face, recognisable to middle-England, and guaranteed a friendly spot on the Daybreak sofa to explain her Task Force’s reforms.

Together these two, not obviously related, news events worry me. Controversy is preferred to consideration; celebrity preferred to expertise. There isn’t a place in the news media or in political debate for those of us whose natural instinct is to think for a while before drawing conclusions. Media moves too quickly. Policies are required to be pithy, headline grabbing and immediate. Thoughtfulness is discouraged, and without thoughtfulness, I think, it’s impossible to achieve understanding. Without understanding a situation how can you draw conclusions, make decisions and plan for the future? Personally, I just don’t think you can.

Finally, just so you can check my sources, in a properly transparent “academic” way, here are some sites that relate to what I’ve written above:

Profile of David Starkey: http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/books/article4837679.ece

David Starkey on Question Time: http://www.youtube.com/watch?v=SXd5KiKWtVA

David Starkey on feminising history: http://www.telegraph.co.uk/culture/tvandradio/5077505/History-has-been-feminised-says-David-Starkey-as-he-launches-Henry-VIII-series.html

Carol Vordeman on maths in schools: http://www.bbc.co.uk/news/education-14437665

And also worth a read is Starkey’s fellow Newsnight guest, Dreda Say Mitchell’s take on the whole affair: http://www.guardian.co.uk/commentisfree/2011/aug/14/david-starkey-ethnic-year-zero

And even more finally, I haven’t written a blog explicitly about the recent riots. Mainly that was because there seemed to be an awful lot of opinion already out there, and also because all I really had to say was, “Well, it’s complicated…” but here are a couple of the more considered views I’ve read on the matter:

Peter Oborne in the Telegraph: http://blogs.telegraph.co.uk/news/peteroborne/100100708/the-moral-decay-of-our-society-is-as-bad-at-the-top-as-the-bottom/

Kevin Sampson in the Guardian (the only writer I’ve seen acknowledge that rioting can be kinda fun for the participants): http://www.guardian.co.uk/commentisfree/2011/aug/10/liverpool-riots-mob-mayhem?INTCMP=SRCH

Everybody’s talking about… tabloid phone hacking

So, it turns out that some people who work for the News of the World have questionable moral standards. This should not be surprising to anyone by this point in time. Allegations of phone hacking first surfaced in 2005. The paper’s royal editor was jailed for this crime in 2007. In February 2010 the Culture Commitee found that it was “inconceivable” that senior executives at the paper weren’t aware that phone hacking was going on.

Questions still remain about how widespread these practices were, or are, across other newspapers and media. The somewhat muted early response to the story from other print tabloids might suggest that there are skeletons in closets well beyond the News of the World. The Information Commissioner’s report into journalists paying for “private” information cited the Mirror and the Mail as the leading offenders in that area. Confirmation from the Press Association in June 2011 that one of its journalists had been arrested in relation to phone hacking also gives a possible indication of a wider problem in the industry.

But the specific actions of specific papers, morally bankrupt though the increasingly appear to be, actually concern me less than the wider culpability of those who ought to be in a position do something about the mess.

Let’s start with the Press Complaints Commission. In 2009 the PCC looked at new allegations of phone hacking at the News of the World, arising from a Guardian article about the problem. They found that there was no evidence of hacking. It was only today, nearly two years later, that the Commission finally acknowledged that they could no longer stand by that conclusion. Today’s statement also noted that the recent admission that Milly Dowler’s voicemail was hacked “undermined the assurances” given to the Commission by News International. Well, yes. But it also raises questions about the PCC’s investigation. Did it simply take the form of asking News International whether they did phone hacking, and nodding politely when the answer was slightly shifty “No sir. Course not sir. Didn’t do it. You can’t prove anything”?

That’s ok though. The PCC is a self-regulatory body for the print media, and there are always limitations to self-regulation in any industry. In this one the limitations of self-regulation have to be balanced against the value of a free press. And in the case of phone-hacking a criminal act has occured, so the primary investigatory responsibility, and power, lie not the with PCC, but with the police.  And here’s where it gets really shady. Rebekah Brooks, former editor of the News of the World and now Chief Executive of News International, admitted in evidence to a Parliamentary Inquiry on the Press & Privacy in 2003, that the News of the World had, on occasion, paid police officers for information. She later qualified this statement in a letter to the Inquiry.

The Met’s initial 2005 investigation into phone hacking led to the convictions of a private investigator and one News of the World journalist. No further action was deemed necessary by the police or the CPS. No evidence of hacking beyond the specific offences in the trial was presented by the CPS to any court. The matter was simply not treated as a priority. At best, that smacks of an attitude that perceives criminal acts by well-paid powerful organisations and individuals as of limited importance. Alternatively, it suggests a police force which is unwilling or incapable of thoroughly investigating powerful, and potentially unco-operative, companies. Even now new revelations about the depth of the wrongdoing at News International seem to come out in terms of “News International have revealed that…”, rather than “the police have discovered that…” It rather makes you wonder who is really in charge of the current investigation.

The police are still not the final line of defence. Ultimately, political pressure could have lit a fire under the police investigation or sanctioned a specific inquiry into phone hacking in the media. Until yesterday that didn’t look likely. Why not? It’s very easy to lay the blame squarely at David Cameron’s door. He employed one former News of the World editor, and still seems unable to accept that that may have been unwise. He is also close friends with Rebekah Brooks. The image of cronyism at the highest level in British politics remains strong, and Cameron should be held accountable for his judgements in who he hires and who he chooses to call a friend.

The problem goes deeper than that though. At present the Murdoch owned News International already control approximately 1/3 of the UK newspaper market. Murdoch also owns 39% of BSkyB and is in the process of attempting to purchase the remaining 61% to make the company wholly owned by News Corp. The political influence of the Murdoch papers is hard to quantify. Successive editors have claimed that they don’t decide election results, they simply follow the public mood very closely. My suspicion is that those editors don’t really believe that version, and, more importantly, politicians don’t believe it either. Since the 1980s Rupert Murdoch and his organisation have become untouchable by leading politicians. Courting those papers has come to be seen as a prerequisite for political success. Unfortunately, it now appears that those papers have been harbouring a contagion at their heart, and politicians are discovering that if you’re prepared to sleep with the enemy, you’re likely to get contaminated by their germs.

How the current controversy over phone hacking, and now paying police for information, pans out may well tell us something about the current state of News Corp’s influence in the UK. If they come out of the other side retaining their market share, luring back those advertisers who are currently distancing themselves from News of the World, and, most importantly, owning BSkyB outright, we will know, that for now at least, traditional bonds of power, influence and cronyism are still strong forces. If they don’t, if the takeover of BSkyB is ultimately blocked, if the News of the World suffers a long-term dip in readership and advertising revenue, then we will know that the sands have shifted, slightly but significantly, around us.

Perhaps, at that point, we might conclude that new media, online news, and social networks really are starting to undermine the accepted order. Misleading stories and misdirections in the mainstream press are becoming easier to challenge, when any Tom, Dick or Alison can write their own version and send it out into the world. With 140 characters as our weapon of choice, we might just all be headline writers now.

Everyone’s talking about superinjunctions…

.. and so I thought I’d make a rare attempt at topicality and join in. Today, Ryan Giggs, the Twitterati’s posterboy for court ordered privacy, was named in the House of Commons (by veteran fan of fidelity and monogamy John Hemmings MP), and so the worst kept secret since Adrian Mole’s diary is officially out. Ryan Giggs (out of Manchester United and some early noughties trainer adverts) took out an injunction to prevent the press reporting allegations that he had an affair with Imogen Thomas (out of Big Brother and going-out-with-famous-people). The world can now discuss this at length, unrestrained by overly draconian and archaic laws which might interfere with our hard earned personal freedom to talk of many things. Hurrah!

Or maybe not. Let’s unpick this a bit. Firstly the legal principles aren’t archaic at all. Essentially they’re rooted in the Human Rights Act which was enacted in the UK in 1998 and provides “the right to respect for privacy and family life.” So lets deal with any politicians who might be trying to spin a “The judges are out of order. They shouldn’t be making laws..” sort of line. They didn’t. You did. If you failed to think through the implications, then that’s Parliament’s problem to resolve. The role of the judiciary is to interpret and implement the law. Parliamentarians don’t like they way the law is implemented? Fine. Change it.

But don’t pretend that designing a revised law is going to be straightforward. Both the principles and practicalities involved are tricky animals. Privacy, first of all, is a squirmy little beast. Is it an invasion of privacy for papers to print photos of celebs in unflattering beachwear if they’re dressed that way on a public beach? What if the photos are of somone in their own garden and a bit of light treeclimbing is required to get the shot? Are comments made directly to a personal friend, in a public place, private or public? What about comments directed @ a particular user on Twitter? What about comments on facebook which should only be visible to invited friends? What if one of those friends chooses to repeat a comment?

The right to privacy is already balanced in law against the media’s freedom to tell stories that are in “the public interest”, but what information is ultimately in the public interest? The exposure of an affair where the philanderer is a politician trading on his family man image? Probably. The exposure of an affair where the philanderer is a journalist not averse to pressing others about their private lives? Possibly. The exposure of an affair where the philanderer is quite good at kicking a ball whilst running? Sounds like a bit of a stretch to me.

And that’s before we’ve even got to the practicalities of implementing legal parameters around privacy and free speech. The issue of money is a big one in any legal scenario. Taking complex civil court action is expensive. Legal Aid (while it still exists at all  – don’t even get me started on that one) seldoms covers civil litigations, so how do you ensure that the same rights are afforded to the poor and middle income as to the super-rich. One big criticism levelled, perhaps fairly, at many super-injuncters is that their wealth allows them to quash stories that would otherwise have been told freely. At the moment we risk having one level of protection of privacy for the rich, and another for everyone else.

What about the modern interweb? Is chatting to someone on Twitter about a juicy bit of gossip different to chatting to someone in the pub? Can news blackouts in the UK really be sustained over time, if websites based overseas take the view that prosecutions are unlikely to be successful? In that world we end up with two-tier access to news, where internet users have access to a layer of information barred by law to those limited, by finance or circumstance, to mainstream UK media.

Twitter has already demonstrated itself unable (or unwilling) to keep its mouths shut by its response to the Giggs-Thomas affair. Giggs’ name was already available online if you cared to look, but the explosion of online exposure came after his legal team attempted legal action to force Twitter owners to release the details of users who had already named Giggs. At this point Twitter users behaved the way they do when Twitter, as a community, feels its back is against the wall. They ganged up and stuck a collective two fingers up at the legal pressure, by retweeting Giggs’ name with abandon. With even a passing knowledge of Twitter’s short but chatty history, the legal team should have been able to predict this response. Head over to Twitter and search for #Iamspartacus or #twitterjoketrial if you don’t believe me.

So what’s the solution? How do you balance the right to freedom of speech and the importance of a free media against an individual’s right to privacy and family life? Honestly, I’m not sure. My gut feeling is that I don’t have a right to know who Ryan Giggs is sleeping with. I’m not sure that anyone, other than his wife, does. But I think information is in the public interest when major companies are involved in court action alleging they have illegally dumped chemicals on the African coast. Not heard about that one? Surprisingly, it’s not made the same number of column inches as Mr Giggs’ infidelities. You can read more about it here though: http://www.guardian.co.uk/media/greenslade/2010/jan/29/superinjunction-john-terry-trafigura

And I think I’ll draw to a close with a quote from that very Guardian article, which compares the injunction taken out by another premiership footballer (John Terry) with that taken out to prevent the chemical dumping story making the news: “We, and I hope you, believe that superinjunctions are a threat to freedom of speech and serious reporting. But please use the space below to discuss that and not John Terry’s private life. The latter increases the risk of the former.”

And that’s my final point. Hurrah to Twitter for standing shoulder to shoulder with Paul Chambers over the, now infamous, Twitter Joke Trial. Hurrah to social networks for their part in keeping stories like the Trafigura chemical dump in the news. But by tweeting names of individuals involved in affairs or other private indiscretions, I think that we lessen our collective worth. It’s good to be troublesome from time to time, but troublesome with a point, not just troublesome cos it’s fun.