There is a sound reason why sane people don’t study the Law – it fries your brain. Normal people wish to retain a few brain cells to enable them to do ordinary things – like cross the road safely. Lawyers just develop a taste for reading ever drier and dustier texts.
Which is how I came to be reading an obtuse piece of jurisprudence at 4am this morning. Like I said…sane people.
What is more, I am about to inflict it on you. Really, I am. I’ll try to put it in plain English, because it fascinated me – and made my spine tingle. You get like that after a few years. Other people have sex lives.
The British Common Law system relies on the law constantly being adapted to fit new situations – not ‘Judge made law’ as the media like to put it, NO, NO, NO, absolutely not, it is Judges looking to ‘parliaments intentions’ as they delicately put it. The outcome might seem one and the same to you, but to suggest that a Judge is actually ‘making law’ is an absolute No-no. They are merely calling up a different interpretation of what they think, as opposed to what the last Judge ‘thought’, was Parliaments intention….
These days, thanks to the inclusion of the Human Rights Act, that incorporates a lot of continental ‘Civil Law’ principles.
I was originally looking at the proposed revisions of the Data Protection Directive. (At 4am? I’ve already agreed that I’m sad, so just pipe down in the back there) It sounds reasonable enough on the surface. It proposes to give people the opportunity to delete personal data that is no longer appropriate; you know the sort of thing, the County Court Judgment that you paid off 15 years ago, the youthful indiscretion that resulted in a criminal record – who could object to people being given the right to expunge such damaging data from the on-line record?
Delving deeper into this dense fabric, I discovered the origins of the concept. Buried in the fabric of civil law, it is the ‘right to oblivion’, the ‘droit à l’oubli’, which is described in ‘The Harmonisation of European Private Law’ as being the ‘right to silence on past events in life that are no longer occurring’.
Now the section of the Data Protection Directive that is proposed to be changed is absolutely not, perish the thought, proposing anything as dramatic as rewriting history or censorship or the gagging of journalists. Categorically not.
It is just proposing a little harmless tinkering with the law, which will in turn be incorporated into British law, allowing innocent persons to ‘take control of their on-line lives once more’; expunge those embarrassing Face-book pictures, letting that conviction for throwing a flower pot through a restaurant window when you were but a teen-ager be struck from the record.
It will also, inadvertently, incorporate a smidgeon of the civil law ‘right to silence on past events in life that are no longer occurring’ to enter the British legal field. Once there, it will be called to the attention of Judges asked to interpret parliaments intentions….as they have been asked to interpret the Right to a Family Life on the basis of having sired five sprogs with four different women in an effort to avoid going back to Somalia.
The collision of Common Law and Civil Law is an uncomfortable one – too many MPs, let alone the general public, shut their ears and eyes to the implications, its all too complicated. But think on, if you can successfully argue that your credit record should be amended then it is only the hop and a skip of a nimble barrister to argue that your past civil partnership to a woman should be expunged from the record as being a ‘past event no longer occurring’. Your record as Gordon Brown’s financial advisor being a ‘past event no longer occurring’. Balls to that.
My reaction apparently comes within the remit of an ‘emotional and instinctive reaction, often negative, rather than rational and thought through responses’ – a typically lawyer put down – ‘before you say you don’t agree with me, I’ll just insult your ability to understand properly’. An arch-typical left wing argument, and especially typical of those in favour of European Law entering the British legal field.
I say it is creeping in by the back door here – for once I agree with Ken Clarke, a mighty rare event. He said in a speech in Brussels:
‘Other voices than mine have raised concerns over its ability to impinge on free speech and to censor information which has been legitimately circulated in the public domain’.
Eminent lawyers are even now arguing persuasively that the civil law ‘right to forget’ should be remarketed as a ‘right to delete’ to overcome concerns such as mine. That each individual should have the right to delete information about themselves.
Moreover, a ‘right to delete’ is a direct right – a right to act – whereas a ‘right to be forgotten’ appears to be a right to control someone else. This idea of control is connected closely with the association made between the idea of a right to be forgotten and restrictions on free speech, and on censorship. The change in name should help to make it clearer that the connection between a right to delete and censorship is tenuous at best – and in a practical sense non-existent.
Rename it? Bury its origins even deeper? I’m no happier! There is a long history of laws being incorporated into British Law on apparently altruistic grounds which later – too late – turn out to have useful applications, with a little jiggery-pokery, by those who seek to control us.