Very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government’s attempts to reform the UK’s libel laws. It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an Act to protect Americans from our libel law and decent scientists such as Simon Singh, Ben Goldacre and NHS cardiologist Pete Wilsmhurst faced ruin thanks to the law.

These humilations led the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn’t qualify this bold commitment with “except in Northern Ireland”. Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland. But that’s what happened. In the name of devolution, a DUP Minister was able to block (single-handedly) the law from applying to the province.

The law was blocked in a less than democratic manner that is still clouded in secrecy. The former Minister of Finance and Personnel, the combustible Sammy Wilson MLA, withdrew a paper on adoption of the new Defamation Bill without scrutiny by either the Assembly or the Executive. Wilson’s Department refuses to comment, even to a political committee in Stormont, on why consents for the Defamation Bill weren’t sought in the required timescale. What is known is that just days after the DUP’s Ian Paisley Jnr MP made no less than 10 interventions casting doubt on the Defamation Bill in its second reading debate in the House of Commons, Wilson withdrew the paper relating to adoption of the Defamation Act.

First Minister and DUP leader Peter Robinson has said it is “absurd” to claim that the libel law “restricts in some way the media from doing their job”. Yet, Northern Ireland’s media seem under siege. As Sam McBride, the political correspondent of the News Letter tweeted:

“The volume of solicitors’ letters from DUP to BBC over one Spotlight episode gives a pretty clear hint as to why DUP blocked libel reform”.

Other journalists agree. Viscount Colville (himself a respected BBC journalist) relayed to the House of Lords testimony he had been given by the editor of the Belfast Telegraph, Mike Gilson:

“In a small country without official opposition the media’s scrutinising role of government and institutions is even more crucial. I have edited newspapers in every country of the United Kingdom and the time and money now needed to fight off vexatious legal claims against us here is the highest I have ever experienced”.”

The DUP have been very clear in stating their opposition to reform. Worse still, due to the cross-community provisions in the Good Friday Agreement, as the largest Unionist party the DUP can effectively block any Bill they don’t like – even though they only control 38 of the Assembly’s 108 seats. With a majority in the Assembly sympathetic towards the prospect of libel reform and a consultation showing 90% of people in Northern Ireland back reform of the law, this is hardly democratic.

A Private Member’s Bill launched by Mike Nesbitt, the leader of the UUP, attracted support in the Assembly. But now it has been put on ice after the new DUP Finance Minister set the Northern Ireland Law Commission off to run a consultation on the law of libel. While the Law Commission is an esteemed institution, many politicians feel this is an attempt to kick the matter into the long grass. No date has been set for the Commission to launch their consultation, it may not happen for a year. Worse still, evidence submitted to the Law Commission will not be protected by privilege, leaving NGOs reporting on the libel threats dished out by politicians themselves open to libel actions.

Next week in Parliament, an attempt will be made by Peers to amend the Northern Ireland (Miscellaneous Provisions) Bill to extent the Defamation Act to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians are backing the amendment. It is a direct challenge to the DUP who felt they alone could decide on libel reform. The question now is whether the Labour party and Liberal Democrats will back this amendment. Both parties, in particular Labour as the midwife of the Good Friday Agreement, feel fealty towards devolution. Yet, they did also tell the UK at the last election if elected they would reform the law of libel – with no exception. Parliament should send a clear message to the DUP – you alone cannot decide on whether free speech is good enough for the citizens of Northern Ireland.

This article was posted on 21 February 2014 on mjrharris.co.uk

The heroes of the Libel Reform Campaign

On 1 January 2014, the Defamation Act took effect across England and Wales. The Act will have a hugely positive effect on freedom of speech and better protect the public interest, fair comment and individuals from corporate bullying. But – who made this happen? This is my personal take on the individuals who are the heroes behind the Libel Reform Campaign.

My list can’t (and doesn’t) cover the 60,000 people who took the time to sign the petition, lobby their MPs and write to every newspaper in the country. Nor can it anything but touch upon the donors, 100 affiliated organisations or politicians who made the campaign a huge success. I will have no doubt forgotten hugely significant people from the list – omissions are entirely the fault of my lacklustre memory.

So in absolutely no particular order:

Victims of the law

Simon Singh @slsingh

Simon was the inspiration for and constant source of energy for the campaign. Simon’s absolute stubborn determination to do something about the state of the law during and after his case was extraordinary.

Peter Wilmshurst

A true modern hero. Dr Wilmshurst risked his family home and his professional career to speak out about a study into a medical device. Alike many of the victims of libel who joined our campaign, Dr Wilmshurst dedicated a huge amount of personal time in order to speak to politicians to persuade them to get the law right.

Ben Goldacre @BenGoldacre

Don’t talk to Dr Goldacre about vitamin pills. His case illustrated the dangers of the state of the libel law – and his unwavering support broadened the campaign considerably.

Honorable mentions: CarersWatch, Alex Hilton, John Gray, Vaughan Jones, Stuart Jones, Lesley Kemp, David Osler, Hardeep Singh.

Famous folk

Lots of famous people turn up to an event, have their photo taken and disappear. Not these lot.

Dara Ó Briain @daraobriain

My favourite Dara moment isn’t the Big Libel Gig where he gave a barnstorming performance, but him in private meetings with Ed Miliband and Lord McNally where his knowledge of the law was not only impressive, but mildly terrifying to the politicians who expected mild-mannered banter but were put on the spot.

Brian Cox @ProfBrianCox

Not only did Prof. Cox find the time to tour TV studios, but he handed in our 60,000 strong petition to Downing Street and used his Sun column to back the campaign.

Dave Gorman @DaveGorman

One of the key figures behind the Mass Rally for Libel Reform an event the then Justice Secretary Jack Straw described as the best attended he’d seen in parliament in years.

Robin Ince @RobinInce

The brilliant host (and co-organiser) of the Big Libel Gig, Robin rounded up as many of his contacts as he could to put on the greatest comedic show ever – about the law of defamation.

Honorable mentions: Marcus Brigstocke, Stephen Fry, AC Grayling, Ian Hislop, Shappi Khorsandi, Tim Minchin, Jonathan Ross, Adam Rutherford.

Journalists & Writers

Lisa Appignanesi @LisaAppignanesi

Lisa’s personal experience of the libel laws as a writer made her push for libel law reform as early as 2008 while PEN President.

Nick Cohen @NickCohen4

From the Ehrenfeld case through to Singh case and Lord Puttnam’s last minute attempt to tack Leveson into libel (and wreck the Bill), Cohen has written more than almost anyone else on why libel reform was necessary and just.

David Allen Green @JackofKent

David’s call to arms in the Wetherspoons pub (the Penderal’s Oak) in Holborn is immortalised in a plaque that now hangs on the wall. As one of the campaigning lawyers and journalists who gave impetus to the campaign he stuck with us through thick and thin.

Maya Wolfe-Robinson @mwolferobinson

Had to wade through as many op/eds on libel reform as any sane person could handle. But continued to give unstinting support to the campaign.

Honorable mentions: Jake Arnott, Guy Black, Phillip Campbell, Amanda Craig, Frances Gibb, Fiona Godley, Afua Hirsch, Natasha Loder, John Micklethwait, Alan Rusbridger, Nick Ross, John Sweeney, Craig Woodhouse, Peter Wright.

Lawyers

Robert Dougans @RobertDougans

Simon Singh’s lawyer first and foremost but also the defender of a long list of other worthy folk. Dougans is a one-man free speech engine.

Mark Lewis @MarkLewisLawyer

Defended the Owlstalk bloggers and Dr Peter Wilmshurst from libel actions. An endless source of knowledge, time and ideas for the campaign.

Adrienne Page @PageAdrienne

Gave the campaign exceptionally useful advice during the passage of the Defamation Bill especially on how to improve the public interest defence.

Gill Phillips @ladywell23

Endless good advice and practical examples of how the law chilled responsible journalism.

David Price

An enormous help to the campaign in refining our position on costs, the public interest defence and in a number of other key areas.

Stephen Sedley

Chair of the Alternative Libel Project. His sensible stewardship has made cheap alternatives to a full trial possible.

Mark Stephens @MarksLarks

Gave a significant amount of his time to the original report and subsequently to promoting libel reform within the legal profession.

Honorable mentions: Alistair Brett, Joanne Cash, Harvey Kass, Caroline Kelly, David Marshall, Gavin Millar, Brian Neill, Marcus Partington, Jonathan Price, Heather Rogers, Pia Sarma.

Campaigners

People who gave their time. For free.

The Geek Calendar @geekcalender

The nerds (as a compliment) who launched Geek Calendar not only made the must-have calender of 2011, but raised thousands of £s for the campaign. Special thanks to the organisers Mun-Keat Looi (@ayasawada); Alice Bell, Louise Crane and the production team Ben Gilbert, Greg Funnell; Cosima Dinkel; Greg Foot, Barry Gibb, Tom Ziessen.

Tracy King @tkingdoll

The co-organiser (and inspiration for) the Big Libel Gig, a huge sell out show in front of over 2,000 people in London’s Palace Theatre. Tracy’s gig was a massive success that fired a rocket up the politicians.

Honorable mentions: @noodlemaz, @rebeccawatson, @davepaton

Scientists, NGOs, campaign groups

Justine Roberts (@Justine_Roberts) & Rowan Davies (@RowanDavies), Mumsnet

Mumsnet’s Justine Roberts donated a staggering £12,500 to the Libel Reform Campaign and kept her organisation behind the campaign through the whole 4 year period.

Charmian Gooch, Global Witness

Global Witness’s evidence to parliamentarians made a huge difference in persuading the government to update and improve the public interest defence.

Honorable mentions: Emma Ascroft (Yahoo!), Kate Briscoe, David Colquhoun, Richard Dunstan (Citizens Advice), Francisco Lacerda, Antony Lempert (British Medical Association), Richard Mollet (Publishers Association) Dalia Neild, Bob Satchwell (Society of Editors).

Politicians

You only ever hear bad stuff about politicians. This group of politicians put party-politics aside and made a big difference.

Lord Lester

The “grandfather” (in his own words) of the Defamation Act. Without Lord Lester’s private members bill, none of this may have been possible. His private bill showed that placing important defences into statute was feasible and created a vehicle for the final Act of Parliament.

Dr Evan Harris MP @drevanharris

I may have an absolutely fundamental disagreement with Evan over Leveson, but frankly without his tireless commitment to the campaign and sage advice the campaign would not have been such a success. A truly fearsome campaigner.

Lord McNally

Did what he said he would — as Justice Minister he delivered the first wholesale reform of the law since 1843.

Sadiq Khan MP @sadiqkhan

Labour’s shadow Justice Secretary really kept the pressure on the government to improve the Defamation Bill throughout the parliamentary process. Sadiq scored a big victory in reducing the ease with which corporations can sue for libel.

Paul Farrelly MP @PaulFarrelly

Paul founded the All Party Parliamentary Group on Libel Reform which helped coordinate sympathetic MPs to push for libel reform.

Lord Mawhinney

As Chair of the Joint Scrutiny Committee of the draft Defamation Bill, he oversaw a scrutiny process that enhanced and strengthened the Defamation Bill (rather than, as we feared, may have weakened it).

John Whittingdale MP

His Committee’s important report (Culture, Media and Sport Select Committee) into libel significantly increased the momentum in parliament for reform.

Honorable mentions: Lord Allan, Baroness Bakewell, Lord Bew, Peter Bottomley MP, Lord Browne, Viscount Colville, David Davis MP, Paul Farrelly MP, Rob Flello MP, Lord Grade, Dominic Grieve, Baroness Hayter, Julian Huppert MP, Lord Macdonald, Baroness O’Neill, Jack Straw MP, Lord Taverne, Lord Willis of Knaresborough, every MP who signed EDM 1636 and EDM 423.

The professionals

Every campaign needs people to actually do stuff. At the core of the campaign were 3 amazing groups you should support (English PEN @englishpen; Index on Censorship @IndexCensorship; Sense About Science @senseaboutsci). Here are their humans:

Tracey Brown, Jo Glanville, Jonathan Heawood (@jheawood), John Kampfner (@jkampfner), err me Mike Harris (@mjrharris), Síle Lane and Robert Sharp (@RobertSharp59).

Honorable mentions: Chris Peters, Padraig Reidy.

Oh, and a warning from history

Just a note of caution.

The Report recites in non-technical language the general criticisms of the present law, and lists them as complication, cost, uncertainty, stifling of public discussion, undue severity upon unintentional defamation and bias in favour of ” gold-digging ” plaintiffs.

That report was not Free Speech Is Not For Sale but the Porter Report of 1948 which recommended reform to the law of libel which culminated in the Defamation Act 1952. Sixty years on, after initial progress, reform was required once more.

One sentence from the Porter Report, as noted by Selwyn Lloyd MP in The Spectator’s archive, will stand out for seasoned Leveson-watchers:

The Report abhors what it calls “Group Defamation,” for example, the vilification of a particular race or creed or party, but considers that any attempt to go beyond the present law as to seditious libel would curtail free political discussion.

The Libel Reform Campaign essential reading list

‘Free Speech Is Not For Sale’ (November 2009)

http://www.libelreform.org/our-report

‘Reforming libel – what must a Defamation Bill achieve?’ (September 2010)

http://www.libelreform.org/news/471-reforming-libel-what-must-a-defamation-bill-achieve

‘Libel Reform Campaign – Evidence to Joint Committee on the Draft Defamation Bill ‘ (May 2011)

http://www.senseaboutscience.org/data/files/LRC_submission_to_Joint_Ctt__cover_note_2011_may_25.pdf

‘Libel Reform Campaign – initial analysis of the Defamation Act’ (April 2013)

http://www.senseaboutscience.org/data/files/Libel/Libel_Reform_Campaign_-_Initial_asssesment_of_the_Defamation_Act.pdf

Northern Ireland

‘Libel Reform Campaign – Evidence to the Northern Ireland Assembly’s Finance and

Personnel Committee ‘ (July 2013)

http://www.niassembly.gov.uk/Documents/Finance/Defamation-Act/written-submissions/Libel-Reform-Campaign-Defamation-Act-submission.pdf

‘Libel Reform Campaign response to the proposed Private Member’s Bill on the law of defamation in Northern Ireland ‘ (November 2013)

http://libelreform.org/images/lrcmikenesbitt.pdf

Alternative dispute resolution

‘Alternative Libel Project – Final Report’ (March 2012)

http://www.englishpen.org/wp-content/uploads/2012/03/Alternative_Libel_Project_FinalMarch2012.pdf

Here’s a presentation on the process behind the Libel Reform Campaign – how we took public anger at our archaic libel laws and used it to build support for a new Defamation Bill, which became the Defamation Act. The Act will come into force on 1 January 2014.

The presentation is a useful tool for NGOs looking at guides on how to campaign.

As a councillor, I was interested to find out exactly how much the Department of Health spent both on the original legal action fighting against Labour-controlled Lewisham Council’s judicial review of their unfair attempt to close Lewisham Hospital and the cost of appealing the Council (and the Save Lewisham Hospital) campaign’s victory. My freedom of information request has discovered the figure is an astonishing £209,000 excluding the cost of in-house counsel at the Department of Health and Lewisham Council’s legal fees which they bizarrely exclude from the request.

Clearly, the cost could be higher than £300,000, an outrageous waste of taxpayer’s money. That’s on top of the £5.1 million spent on the special administrator (who doled out £3.2 million in turn to consultants).

Here is the response I received:

Dear Mr Harris,

Thank you for your request of 29 October 2013 under the Freedom of Information Act (2000). Your exact request was:

“I would like to make a Freedom of Information Request to obtain the
following information:
a. What has the total cost of legal fees for Department of Health for the
above-stated legal case (GOVERNMENT vs. LEWISHAM COUNCIL &
SAVE LEWISHAM HOSPITAL CAMPAIGN) broken down into:
i. Estimated internal legal costs (staff time, on board costs) for the
Department of Health;
ii. External costs for legal counsel for the Department of Health
b. What has been the cost of the challenge to the decision made by the
High Court by Judge Silber on 31 July 2013 in:
i. internal costs to the Department (as above);
ii. external costs to the Department.”

I can confirm that the Department holds information relevant to your request.
1. The estimated costs to the Department relating to the judicial review in the
High Court (between 18 March and 31 July 2013) totalled approximately
£117,000. This is broken down as follows:
• Treasury Solicitor’s fees charged to the Department –
approximately £41,000
• Counsel – approximately £76,000
• Disbursements – approximately £80.00
Up to 15 March 2013, legal services were rendered in this litigation by
employees of the Department of Health Legal Services – ie by in-house
solicitors. Information concerning staff members’ salaries is covered, and exempt from disclosure, under Section 40 of the FOI
Act. Therefore and outwith salaries, there was no cost to the
Department in this period.
2. The estimated costs to the Department relating to the appeal (from 1
August to 29 October 2013) totalled approximately £92,0000, broken down
as follows:
• Treasury Solicitor’s fees charged to the Department –
approximately £47,000
• Counsels’ fees – approximately £42,000
• Disbursements – approximately £3,000

Interestingly, the response goes on to say:

The Court is now dealing with consequential matters including both
respondents’ costs of the appeal. The levels of these are not yet known at
this time.

So, perhaps in excess of £300,000 and that’s without including the cost of Lewisham Council’s (and the campaign’s) legal costs which the Department of Health is now liable for.

MLAs will on Wednesday be told that reform of Northern Ireland’s outdated law is needed or else the province will lose out on investment.

This article was originally published in the Belfast Telegraph.

In 2008, the United Nations Human Rights Committee condemned the libel law of England, Wales and Northern Ireland for having a chilling effect on free speech across the world.

Not only did important elements of the law pre-date the invention of the light bulb, let alone the internet, but corporations and oligarchs could bully their critics with near-impunity, silencing freedom of expression both here but also abroad.

The courts heard cases with no connection at all to this jurisdiction. One Ukrainian oligarch sued a local Ukrainian paper and a disgraced Saudi businessman, Sheikh Khalid bin Mahfouz, sued a US academic for a book not even published here.

To protect free speech, US President Barack Obama signed into law the US Speech Act to protect US citizens from the effect of English, Welsh and Northern Irish libel law, an act described as a “national embarrassment” by MPs.

Now Northern Ireland is alone with its embarrassing libel law. The law of England and Wales has been substantially reformed after the Libel Reform Campaign won support from 60,000 members of the public and over 100 charities and campaigning groups and in response the Government passed the Defamation Act.

Meanwhile in the Republic of Ireland, the Defamation Act of 2009 made modest changes to update the law to reflect the internet age and improve the defences available to those sued.

It is extremely unfortunate that Sammy Wilson, the Minister of Finance and Personnel, personally vetoed adoption of the Defamation Bill without scrutiny by either the Assembly or the Executive.

The worry is that “libel tourists” such as corrupt businessmen, powerful vested interests and global corporations may begin to use the High Court in Belfast to silence their critics using Northern Ireland’s unreformed law.

When we started our campaign, we asked people to tell us what had been censored using the libel laws. The results were startling.

Half of GPs surveyed said libel laws were stifling debate about the safety of drug treatments. Which? told us it went through lengthy legal proceedings by a manufacturer after they lab tested child safety seats.

Mumsnet faced legal action for humorous posts on its forum. Those who spoke out on the dumping of toxic waste in Africa and the funding of terrorism were taken to court.

Chillingly, cardiologist Dr Pete Wilmshurst told us how he was being sued by a US corporation for pointing out possible problems with heart devices.

In the four years he fought his case, patients continued to have these devices implanted in their hearts. Some then needed extensive surgery to have them removed because of the fault. If his concerns hadn’t been silenced by his four-year libel case, doctors may not have recommended this treatment.

Dr Wilmshurst will be joining me, English PEN and Sense About Science to give testimony to the Finance and Personnel Committee of the Northern Ireland Assembly today after the Chair Daithi McKay personally intervened to ensure Northern Ireland has a debate about these laws.

Mike Nesbitt MLA is also working with lawyers to prepare a Defamation Bill to bring to the Assembly later this year.

While Sammy Wilson thinks there is no need for reform, other politicians beg to differ.

If Northern Ireland gets this right, it will have a law fit for the internet age that protects ordinary people and GPs, scientists and academics speaking out in the public interest.

If it fails to reform the law, it’s hard to see how it will attract internet companies with a publication rule from 1849; how it will attract academics with no public interest defence for their work, or ensure books don’t get pulped (as they have done) with little protection for comment or opinion.

England and Wales have enacted wholesale libel reform for the first time in 170 years, Northern Ireland cannot afford to miss this opportunity.

Mike Harris is Head of Advocacy at Index on Censorship, part of the Libel Reform Campaign.

“Laws are like sausages – it is best not to see them being made”; a phrase commonly attributed to Otto von Bismarck seems apt for attempts to reform our archaic libel laws. The last wholesale attempt to get libel law right was in 1843, making Robert Peel our last “libel reforming” prime minister. Depressingly, the sausage cliché is younger than much of the parliamentary law that dictates what we can and can’t say. It’s hard to overstate how chilling to free speech the current law is.

Libel tourism

In 2010, President Obama signed into law the US Speech Act protecting Americans from libel judgements made in the high court here. John Whittingdale MP, the chair of the culture, media and sport select committee described this as a “national humiliation”. Our publication rule laughably predates the light bulb, originating in a case won by the notoriously litigious Duke of Brunswick in 1849. Thanks to this case, if you unknowingly copy a libellous statement and publish it on your blog, you could receive a threatening legal letter.

Thankfully, the government will be taking action on “libel tourism” and updating the publication rule for the internet age with the defamation bill that is currently passing through parliament. However, in some ways, the bill is a missed opportunity, with no new public interest defence and no action taken to stop corporations suing individuals.

Getting libel reform right means giving citizens a new public interest defence. Such a defence would have protected libel victims such as Dr Ben Goldacre, Simon Singh and cardiologist Dr Peter Wilmshurst – all of whom were dragged through the courts after writing on important matters of science. A strong public interest defence will protect NGOs and academics from libel actions when they speak out on the dumping of toxic waste by multinational corporations or rampant tax evasion by banks. This defence is crucial – it’s near-impossible for scientists to prove the absolute truth of their research in particular where there are constant breakthroughs in our knowledge.

It’s chilling to think that Wilmshurst was sued for pointing out possible problems with heart devices. In the four years he fought his case, patients continued to have these devices implanted in their hearts. Some then needed extensive surgery to have them removed because of the fault. If his concerns hadn’t been silenced by his four year libel case, doctors may not have recommended this treatment.

Public interest defence

A new public interest defence will also protect NGOs and citizen journalists who have got a minor fact wrong, but are willing to correct or clarify it. As it stands, with no new protections, the bill would not have helped many of the cases that spurred 60,000 people to sign the Libel Reform Campaign petition. It was the intention of the government to get this right. Justice minister Lord McNally told Singh at a packed Libel Reform Campaign meeting that he’d be reforming the law so that scientists couldn’t be dragged through the courts again. His hard work on this issue is being undermined by the lack of this defence.

The defamation bill will do little to stop corporations suing individuals. This may be for ideological reasons, but in a globalised world where big corporations increasingly dominate the public space, letting them sue individuals is manifestly unfair. Across parliament, Conservative MPs such as Peter Bottomley and David Davis, Liberal Democrats Tom Brake and Julian Huppert and Labour’s Rob Flello and Paul Farrelly have questioned whether large companies really do need to resort to suing citizens.

With PR teams and laws to stop anti-competitive practices, firms do have alternatives. The law of libel was never originally intended to cover non-natural persons. The law is there to compensate damage to an individual’s reputation and the psychological impact this has. But companies don’t have psychological integrity, ie feelings. Should they get damages for defamation?

A huge effort has gone into the Libel Reform Campaign so far. 60,000 supporters have lobbied their MPs in person, held pub meetings, events in parliament, roundtable discussions with lawyers and international human rights groups, a huge comedy gig in central London with help from 60 civil society organisations. On Wednesday comedians and friends of science Dara O’ Briain, Dave Gorman and Brian Cox will join us in parliament to lobby MPs. It’s not too late for the government to strengthen its defamation bill.

In the meantime, Guardian readers can email their MP to ask them to put pressure on ministers. Wholesale libel reform only comes around every 170 years – anyone who cares about free speech cannot afford to miss this opportunity.

I originally wrote this article for Guardian Law on Wednesday 27 June 2012.