Digital Economy Act 2010: Parliament is Supreme(ish)

July 8, 2010

The news that BT and TalkTalk were applying for judicial review of the Digital Economy Act 2010, or at least seeking a ruling that parts of it should be subject to a declaration of incompatibility, immediately led me to assume that they had persuaded Diana Ross to exercise her veto. For the old joke was that, while Parliament was supreme, Diana was the {i}lead{/i} Supreme and had even greater power. My second thought was perhaps Diana was actually acting for them – for they seemed to have engaged a lawyer with as much grasp of legal realities, and constitutional law in particular, as the allegedly flaky diva herself. (Then I found myself in a fantasy about Capello using half time to file for judicial review of the decision on the Lampard phantom goal, but that fantasy needn’t detain us.) I can just about see past these negative assumptions and fantasies, but only just.

The recent success of the Law Society in having the new scheme for defendants’ costs orders thrown out may make TalkTalk hope that their challenge can be successful. But that judicial review quashed the rates and schemes set by the Lord Chancellor under a statutory instrument, and it was based on well established principles. There have been challenges too to some of the terrorism legislation, but again these have tended to focus on schemes made under Acts, not the Acts themselves. The only challenge to an Act of Parliament of a comparable nature that I can recall was the challenge to the Hunting Act 2004 (on just about every conceivable ground from human rights to defective Parliamentary process) – and that was a waste of time and vast slices of hunters’ money.

It follows that one surprising aspect of the application for judicial review is that it comes now before any scheme has been put into effect. There is no initial obligations code, none of the various codes of practice have yet been finalised and the Secretary of State is some way off exercising his powers to limit internet access under s 10 of the Act. The judicial review is therefore left to challenge the provisions of the Act itself rather than any codes made under it (which might have been more vulnerable). What judge, after looking the progress of this Act in its final stages as a Bill, will be brave enough to tell Parliament that its structures and procedures were rubbish and the Commons Second Reading debate and the wash-up were a disgrace. However true it may be (and it is {i}very{/i} true), there is brave and there is stupid – and even a judge who is prepared to be that brave (or stupid) is likely to feel slightly restricted by clear constitutional precedents. Basically, our constitution allows Parliament to be rubbish – which is just as well for some of its members. The things that went askew in the passage of the Bill are very wrong, but they raise issues requiring a political resolution – they are not capable of being resolved in the courts.

The only real hope in this battle with the Parliamentarians for King Charles (Dunstone of TalkTalk) arises if he can get Napoleon to come to his aid. I appreciate that even the worst historian knows he would have a very long wait (and that even the Daily Mail knows that equating the EU with Napoleon is very 1980s), but you get the idea. According to the official press release, the parties are seeking ‘clarity about whether this legislation is compatible with important EU laws’ and we all know that ‘EU laws’ trump even Diana Ross. Well, they may be seeking clarity, and I think they will get it, but like St Augustine praying for chastity they may not really want it yet. It is hard to see any ‘EU laws’ that are necessarily incompatible with the Act. It may be that the cumulative effect of cost-sharing, infringement lists and codes of practice adds up to enough of an imposition to threaten the protection granted to information society service providers but it is a long shot, especially as those burdens are yet to be made concrete.

I hope that some SCL member is representing TalkTalk and BT in this action. That’s not just because I want SCL members to have the fees, but I would love to be enlightened about the nature of the application for judicial review. In fact, I would really welcome any comment that suggests that the application can succeed and supports that view with sensible argument.