I have the classic English mastery of foreign languages. I know quite a few words of French, Spanish and Italian. I can even string together the odd statement or question with deceptive fluency. But don’t expect me to interact intelligently when I get a response because I don’t think in the language – I have to translate each word, often by reference to its apparent Latin equivalent, and there is a lot of room for misunderstanding. That’s why I thought the Spanish neighbours were entering through the gate when in fact they were burying the cat and that’s also why a certain Spanish caretaker is under the impression that I have more than 50 anuses. In the end, I usually fall back on English, spoken slowly and with gestures.
The most striking feature of the weeks of headlines about MPs’ expenses has seemed to me to be the defences mounted by some MPs. They were quite clearly speaking words that seemed to them relevant and to amount to a defence but which, in the perception of 99% of the population were irrelevant and further proof of guilt. The now clichéd cry went up: ‘they just don’t get it’. In fact, they were just thinking in their own language, one spoken and understood only in the corridors of Westminster.
I fear that there is a similar disconnect when it comes to translating concepts of European law into English law.
I was speaking last week to {Monica Horten: http://www.iptegrity.com/}, who has kindly put together a guide to the progress through the EU institutions of the Telecoms package in her article {Package in Transit: http://www.scl.org/site.aspx?i=ed12108}, about the process of amendment to the package (which bears a striking resemblance to the Hokey Cokey – ‘in, out, shake it all about’). One of her comments made me think hard. She pointed out that many people, including UK lawyers for sure, found it hard to reconcile the idea that a raft of legislation about telecoms (ie about wires and machines) was influenced by human rights concepts.
Monica’s comment followed on from the move by EU Commissioner Viviane Reding to call into question our implementation of the EU rules ensuring the confidentiality of communications. She didn’t actually say that the UK ‘just doesn’t get it’, but you knew that she wanted to. It seems clear that we don’t quite understand privacy in the way that we are supposed to.
I was also struck by something from Roger Hartley on the {datonomy blog: http://datonomy.blogspot.com/}. He suggests, in a post that is strongly recommended and which deserves more than my two-line summary, that the Data Protection Act obscures the requirement in the Directive that processing must be for a legitimate purpose. We are not really comfortable with the grand concept of ‘legitimacy’ – give us instances of the legitimate and we are happier. And finally, today, I came across the (really rather well argued) case put forward by the French government for the Creation and Internet law (known to its friends as 3-strikes) and the unselfconscious reference there to liberty (you can read read it in English {here: http://www.culture.gouv.fr/culture/actualites/conferen/albanel/falseideas.htm}) and wondered if it might have jarred in a UK justification.
And of course there is the wonderful instance of the software patents issue where the UK authority thinks (or pretends?) that it is saying exactly the same thing as the EU authority, and the EU authority knows damn well that it isn’t.
I think there is a deep cultural divide, and that too many English lawyers and English law makers not only write in the language with which they are familiar but still think in that ‘language’ and translate. Perhaps, like me, they too often translate by reference to the nearest Latin equivalent. That divide in terms of reference seems to matter more and more in the practice of IT law, at least when the big issues arise.
I hope that future articles on the site and in the magazine will explore the divide and establish how deep it is.
Whether we actually need to think in another legal language about the issues is moot. I write this on the eve of an election for the European Parliament and, if Nigel Farrage triumphs, we might soon be able to think solely in UK terms and solely in a UK context.
But I wouldn’t bet on it.
