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‘Fake news’: Theresa May takes credit for law that was actually made by the EU

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Law students, prepare to cringe

Prime Minister Theresa May has been mocked after she took credit for a new law that was actually spearheaded by the European Union. While accusations of “dishonesty” and “hypocrisy” swirl, Legal Cheek wonders whether new research into the legal status of tweets will come in handy here.

May induced face palms around the country when she tweeted that the Conservatives had sounded the death knell for credit charge surcharges:

This change in law is good news for consumers, and you might think this is the reason the tweet has garnered thousands of retweets, likes and comments. But, in reality, a whack of these come from spectators eager to point out that the new law actually stems not from Tory policy but from the EU Payment Services Directive. Law students will remember EU directives are directly enforceable across all Member States (subject to the Van Gend en Loos test).

People are pretty angry about this. Speaking to Legal Cheek, former Simpson Millar partner turned campaigner Peter Stefanovic described May’s claim as “simply another example of a Prime Minister in desperate need of (any) positive news feed on social media she can get, even if she knows it to be fake news”. He believes that lawyers have a duty, “both morally and professionally”, not only to speak out about injustice but to actively fight it.

And that they have. To give you a flavour of the lawyer-led backlash, Jessica Simor QC, of Matrix Chambers, described the tweet as “propaganda”, while Thom Brooks, the dean of Durham Law School, thinks May’s spurt is an example of “hypocrisy”.

Others argue that the tweet goes to the heart of our (faltering) relationship with the EU.

Law academics from Cambridge and LSE (namely Kenneth Armstrong and Conor Gearty respectively) think the government’s credit-taking goes some way to explaining why we voted to leave the EU in 2016:

Conservative chairman Brandon Lewis defended the tweet. He told The Andrew Marr Show that the government is part of the EU law-making process, and will “bring that ban through”. When Marr described the hoo-ha as “slightly embarrassing”, Lewis replied:

“No it’s not. We’ve got to spread that message much more widely about the things we are doing.”

We’re not sure this will wash with the enraged legal Twitterati. Criminal lawyer Nicholas Diable thinks there should be repercussions for May’s “clearly dishonest” message, saying: “Should be an offence for a politician to lie like this”.

We’re sure Diable is not alone in thinking politicians should be held to account for the posts they share on Twitter (paging Donald Trump…), but the legal status of tweets really is a grey area. The Jack Monroe/Katie Hopkins dispute demonstrated that posts fired off on Twitter can be the subject of defamation proceedings, but what about politicians and their social media posts?

The latest comments from across Legal Cheek

Thankfully, an article in the Harvard Law Review has some answers, at least in relation to tweets fired off by Trump about transgender people serving in the US military (i.e. that they can’t). While the tweets caused widespread outrage and were bolstered by a later presidential memorandum, the tweets themselves cannot be considered legally binding.

The article gives a number of reasons for this, including that “typical processes of accountable, reasoned decision-making” are inherent in law-making, this in contrast with Twitter’s “character limit and thirst for hot takes”.

Food for thought, particularly as Lewis plans to increase support for the Conservatives among young people by making better use of social media. Expect graphics, videos and gifs — hopefully not those of the credit-taking kind.

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19 Comments

Not Amused

People should know better than to bandy about words like ‘dishonest’ or ‘lie’.

I note in passing that most major banks are making the same boast, to much less wailing.

(9)(19)

Anonymous

So, what word would you use to describe a statement that someone makes which is not true?

(18)(2)

Anonymous

If he lies to herself enough times, it must be true right?

Brexit means Brexit. Brexit means Brexit. Brexit means… what is Brexit again? Brexit means Brexit. Brexit means Brexit.

(12)(3)

Anonymous

TM’s tweet doesn’t actually say anything untrue.

(14)(10)

Anonymous

Why the down-votes?

Which part of this is untrue? “From today we’re banning hidden charges for paying with your credit or debit card – a move that will help millions of people avoid rip-off fees when spending their hard-earned money”

(1)(4)

Anonymous

this article is fake news and fake stirs – like the poster above stated, the tweet does not actually say anything untrue

(10)(9)

A Brussels lawyer writes....

if you are looking for fake news, look no further than “Law students will remember EU directives are directly enforceable across all Member States (subject to the Van Gend en Loos test)”. No: fail. King, see me after class for some remedial reading on direct applicability of certain articles of the Treaty and vertical direct effect of Directives by individuals against the State.

The UK has been a strong supporter of EU action on card fees; it was the only Member State to intervene in support of the Commission in defending before the Court the Commission’s Decision of 2007 that found that MasterCard’s interchange fees infringed the competition rules. This may be because the OFT had already started similar action at national level itself. The rules originate from the EU, but the UK did more than other Member States to create the circumstances that led to their adoption.

(16)(2)

Anonymous

When the UK decided to leave the EU it lost its right to take credit for certain Directives, along with its right to complain about others.

Out means out. For now EU Directives are relevant, but the UK has no place in the future. It can get rid of these rules, just like it can get rid of workers rights and just like it will need to try and re-write the rulebook on trade with member states.

The UK will probably not be able to afford to discuss or implement law-making on any scale to make future achievements like this possible.

The UK has dug itself a big hole and deserves to be buried forever unless it grovels and pays its way back out. Disgusting country.

(7)(12)

Anonymous

…but the UK hasn’t yet left and is still a member and is still involved with directives and has, at the EU’s request, agreed to carry on paying for agreed projects…

(5)(0)

Anonymous

… for now. Like a disgraced and soon-to-be-ejected guest at the dinner party who has been told they can finish their steak before they make a move. Yuck.

(3)(7)

Anonymous

…cute attempt at an analogy but you’re forgetting the UK chose to leave and isn’t being ejected.

(8)(2)

Anonymous

Britain chose to leave thinking they’d be welcome to share steak and share a beer with the rest of the EU. It isn’t like that. The uneasy atmosphere at the dinner table is Britain’s own doing.

(4)(4)

Anonymous

The UK had been paying the bill along with Germany for that meal anonymous so you should just keep quiet instead of bandying around words like “disgusting”

(5)(6)

Singapore Swing

Well said!!

(2)(0)

Anonymous

Thank you Brussels Lawyer. I was wondering what the UK position had been during the process of preparing the Directive. Now I know.

It seems to me that the UK government of the day, and probably those of other EU member states, has always taken credit for securing EU law it supported. What’s so different about this one that the legal tweeters should froth quite so much?

I suppose sensible and calm evaluation of anything to do with the EU is now a thing of the past. A sad state of affairs created by both sides. Oh well.

(6)(0)

Anonymous

Erm…Van Gend en Loos relates to treaty provisions. Regulations have direct effect. Directives require implementation in each MS. Amateurs.

(8)(0)

Anonymous

Gov did implement the Directive through Stat Instrument 752 of 2017 so technically May didn’t lie, although it’s a pretty thin distinction.

(3)(0)

Anonymous

VOTE LEAVE

TAKE BACK CONTROL

(0)(6)

Wash n Wear

If I recall it was an EU directive which kicked this off, so it’s the member states who have to sort themselves out.

There’s a timelines for these things being dealt with but we are supposedly leaving anyway.

Regardless of who instigated the movement it’s still been brought in domestically.

Everyone’s acting like no-ones stolen an idea before. What do you expect a PM who has to be pro-exit to say?

“Here’s one more reason we should have stayed in you idiots”

I don’t think so.

(0)(0)

Comments are closed.

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