Libel after Eady

Eady stepping down as top libel judge does not affect the need for libel reform

From 1 October 2010, Sir David Eady will no longer be the senior libel and privacy judge at the High Court (also see report here). He will still be able to hear libel and privacy trials -- he is not retiring outright -- but he will no longer pick and choose which media law cases go before him.

This is welcome news; but not because Mr Justice Eady is particuarly culpable as a judge. In fact, Sir David Eady is generally no worse and no better than any other judge applying the dysfunctional English law of libel. He has given almost as many heartening liberal defamation judgments as dreadfully illiberal judgments. And his contribution to the development of privacy law is commendable: the mainstream media is now less likely to intrude upon people's personal space and misuse private information just because of his rulings.

It is instead welcome news because it de-personalises a complex problem. The problems with libel law are to do with the substance of the law and the way it is litigated and threatened, and not because of any particular judge. To deride Mr Justice Eady -- or to sneer at any particular law firm -- is not the same as urging libel reform.

Libel reform is required mainly because the law wrongly elevates a private right to reputation above the public interest in free discussions on matters of vital public interest. For example, important debates about public health and the efficacy of certain medical treatments remain inhibited by the worry of libel threats. And not all writers have the sheer grit and commitment (and personal resources) of a Simon Singh.

Judges come and go; and (sadly) there will never be a shortage of lawyers who will send aggressive letters to close down contributions to public debates as long as the law allows them to do so. The replacement of Mr Justice Eady as the High Court's senior libel judge makes no real difference to the campaign for libel reform.

The awful -- indeed dispreputable -- state of English libel law will still be there the morning after he steps down.

 

David Allen Green blogs for the New Statesman on legal and policy matters. He is a City media lawyer and was shortlisted for the George Orwell blogging prize for his Jack of Kent blog.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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What is the EU customs union and will Brexit make us leave?

International trade secretary Liam Fox's job makes more sense if we leave the customs union. 

Brexiteers and Remoaners alike have spent the winter months talking of leaving the "customs union", and how this should be weighed up against the benefits of controlling immigration. But what does it actually mean, and how is it different from the EU single market?

Imagine a medieval town, with a busy marketplace where traders are buying and selling wares. Now imagine that the town is also protected by a city wall, with guards ready to slap charges on any outside traders who want to come in. That's how the customs union works.  

In essence, a customs union is an agreement between countries not to impose tariffs on imports from within the club, and at the same time impose common tariffs on goods coming in from outsiders. In other words, the countries decide to trade collectively with each other, and bargain collectively with everyone else. 

The EU isn't the only customs union, or even the first in Europe. In the 19th century, German-speaking states organised the Zollverein, or German Customs Union, which in turn paved the way for the unification of Germany. Other customs unions today include the Eurasian Economic Union of central Asian states and Russia. The EU also has a customs union with Turkey.

What is special about the EU customs union is the level of co-operation, with member states sharing commercial policies, and the size. So how would leaving it affect the UK post-Brexit?

The EU customs union in practice

The EU, acting on behalf of the UK and other member states, has negotiated trade deals with countries around the world which take years to complete. The EU is still mired in talks to try to pull off the controversial Transatlantic Trade and Investment Partnership (TTIP) with the US, and a similar EU-Japan trade deal. These two deals alone would cover a third of all EU trade.

The point of these deals is to make it easier for the EU's exporters to sell abroad, keep imports relatively cheap and at the same time protect the member states' own businesses and consumers as much as possible. 

The rules of the customs union require member states to let the EU negotiate on their behalf, rather than trying to cut their own deals. In theory, if the UK walks away from the customs union, we walk away from all these trade deals, but we also get a chance to strike our own. 

What are the UK's options?

The UK could perhaps come to an agreement with the EU where it continues to remain inside the customs union. But some analysts believe that door has already shut. 

One of Theresa May’s first acts as Prime Minister was to appoint Liam Fox, the Brexiteer, as the secretary of state for international trade. Why would she appoint him, so the logic goes, if there were no international trade deals to talk about? And Fox can only do this if the UK is outside the customs union. 

(Conversely, former Lib Dem leader Nick Clegg argues May will realise the customs union is too valuable and Fox will be gone within two years).

Fox has himself said the UK should leave the customs union but later seemed to backtrack, saying it is "important to have continuity in trade".

If the UK does leave the customs union, it will have the freedom to negotiate, but will it fare better or worse than the EU bloc?

On the one hand, the UK, as a single voice, can make speedy decisions, whereas the EU has a lengthy consultative process (the Belgian region of Wallonia recently blocked the entire EU-Canada trade deal). Incoming US President Donald Trump has already said he will try to come to a deal quickly

On the other, the UK economy is far smaller, and trade negotiators may discover they have far less leverage acting alone. 

Unintended consequences

There is also the question of the UK’s membership of the World Trade Organisation, which is currently governed by its membership of the customs union. According to the Institute for Government: “Many countries will want to be clear about the UK’s membership of the WTO before they open negotiations.”

And then there is the question of policing trade outside of the customs union. For example, if it was significantly cheaper to import goods from China into Ireland, a customs union member, than Northern Ireland, a smuggling network might emerge.

 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.