The BCA gives a fascinating account of why it sued the writer for libel over article in Guardian, and the aftermath of its defeat

The president of the British Chiropractic Council, Richard Brown, recently gave his account of the much publicised libel suit that the BCA instigated against Simon Singh. It makes fascinating reading.

“Co-author with Ernst of Trick or Treatment; Alternative Medicine on Trial, Singh promoted his book by writing a piece in the UK’s Guardian newspaper in which he was critical of a patient information leaflet produced by the BCA called Happy Families, which made claims of effectiveness for chiropractic treatment of a number of childhood disorders, including colic, asthma and bedwetting. Singh claimed that the BCA ‘happily promotes bogus treatments’ even though there was ‘not a jot of evidence’. The BCA was faced with a dilemma. Did it sit by and permit an assault on its reputation and good name, or did it stand up for its members and challenge the criticism? For years, chiropractic had been castigated in a succession of critical articles, but here was a published article which had explicitly named a chiropractic association and had made defamatory comments about it.

“The BCA took advice from a leading specialist London libel lawyer, and was told that it had a cast-iron case. A number of meetings took place and the BCA also sought advice from other sources, including leading academics. Faced with a decision to either meet the criticism with silence or confront the issues head on, the BCA wrote to Simon Singh and demanded an apology and a retraction. He refused.

“In a move largely unexpected by many, rather than sue the newspaper, the BCA sued Simon Singh personally for libel. In doing so, the BCA began one of the darkest periods in its history; one that was ultimately to cost it financially, reputationally and politically.”

Many Guardian readers will be amazed that chiropractors treat childhood diseases at all, particularly as there is little or no good evidence to show that chiropractors do more good than harm to children. So what could be “defamatory” about calling this “bogus”? To understand this better we have to delve into the history of chiropractic.

D D Palmer, the founding father of chiropractic, stated about 100 years ago that “95% of all diseases are caused by displaced vertebrae, the remainder by luxation of other joints.”

This opinion still seems to be shared, at least to some degree, by a sizable proportion of chiropractors. Therefore it seems logical for many chiropractors to treat children for a wide range of conditions.

A survey of 548 members of the International Chiropractic Pediatric Association showed that all of them administered spinal adjustments to their pediatric patients. The three most frequent indications for such treatments were “wellness care”, ear, nose and throat conditions, and digestive problems.

Another survey of about 400 US chiropractors revealed that roughly 17% of them regularly treat children, and the US National Board of Chiropractic Examiners currently claim that there is good evidence to show that chiropractic is an effective treatment for a range of pediatric conditions including colic, bed wetting, otitis media and asthma.

Chiropractors who believe in the gospel of their founding father are convinced that spinal “subluxations” of the vertebrae impede the flow of our life energy which, in turn, is the cause of most illnesses.

Yet there is no scientific basis for the concept of chiropractic “subluxation”. Unsurprisingly, then, there is no good evidence that paediatric conditions respond to chiropractic manipulations.

This is true for “wellness care”, adolescent idiopathic scoliosis, ear, nose and throat problems, digestive disorders and infant colic.

Even a report commissioned by the British General Chiropractic Council in the aftermath of the BCA vs Singh libel case confirmed this lack of sound evidence.

And what about the risks? There is no effective reporting system for adverse events after chiropractic treatments. Consequently, we have to rely mainly on anecdotal evidence. Several hundred severe and frequently life-threatening adverse events have been reported, mostly caused by vertebral artery dissections after chiropractic neck manipulations.

Due to under-reporting, these figures are probably only the tip of a much bigger iceberg. Vohra et al have demonstrated that “serious adverse events might be associated with pediatric manipulation”.

Even the report sponsored by the General Chiropractic Council stated that “the true incidence of serious adverse events in children as a result of spinal manipulation remains unknown”.

Yet the chiropractic profession seems to remain in denial. The National Board of Chiropractic Examiners has stated categorically that “the risk estimates attributed to cervical manipulation are less (by orders of magnitude) than those associated with various medical procedures and even simple lifestyle activities.”

Given the publicity of the BCA vs Singh libel action, combined with the lack of benefit and the fear of harm through chiropractic, it seems only natural that many people objected to the unfounded claims of UK chiropractors.

In the BCA’s president’s own words:

” … an army of scientists, sceptics and comedians was mobilised to disgrace, degrade and demolish the chiropractic profession. Cabinet ministers, BBC journalists and erstwhile Members of Parliament also joined the fray, determined to pitch in and use the case to reform what they claimed were Britain’s draconian libel laws.

“In using the case as a powerful vehicle to promote his Sense About Science campaign, Singh’s crusade mobilised a dark force of UK sceptics who suddenly found their raison d’etre, shifting their attention from the fairy tales of homeopathy to the cure-all claims of chiropractors. Following a call to action, an army of PC pilots and laptop lizards began a war which was to lead to one in three UK chiropractors facing formal disciplinary proceedings from its regulator, the General Chiropractic Council.

“Using a software package to highlight key words in chiropractors’ websites, claims were uncovered relating to everything from haemorrhoids to hair loss, chlamydia to cancer. A total of 718 complaints were made to the General Chiropractic Council (GCC), alleging that chiropractors were misleading the public and exploiting their lack of knowledge over health matters. The GCC faced fitness to practice hearings on a scale previously unknown in the healthcare regulatory world.”

And what was the outcome? Were the chiropractors who had been making unsubstantiated claims disciplined? The short answer is no. “Following a robust legal defence mounted by the BCA on behalf of its members, over 91% of the allegations against chiropractors were dismissed as being not proven.”

One is tempted to conclude that little has changed, but this would be wrong. It is too early to estimate the effects of the libel case on UK chiropractic.

However, in more general terms, I can see plenty of good that has come out of it. Worldwide, the libel action led to a new awareness of alternative medicine, a recognition that there are rules all healthcare professionals must follow, and the realisation that those who ignore them are irresponsible and must therefore be held to account.

Law | guardian.co.uk

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We should be proud of the ancient presumption that the evidence on which English courtrooms proceed is open

Plans to cast justice into the dark continue apace, with the end of a government consultation. New provisions to keep evidence secret from those whose fates turn upon it could be confirmed in the second Queen’s speech of a coalition that once claimed to be animated by liberty.

Every liberal, and for that matter every patriotic Tory, should be proud of the ancient presumption that the evidence on which an English courtroom proceeds is evidence that’s out in the open. The adversarial tradition allows both sides to test the strength of the other’s case, by interrogating it to the very foundations. If this sounds highfalutin, take heed of the practical experiences of those few lawyers who have worked in the one British courtroom that departs from this principle, the Special Immigration Appeals Commission. Dinah Rose QC has spoken of being asked to shoot blindly at a concealed target. Ian Macdonald QC found the process so corrupting that he resigned as a special advocate as a point of conscience.

The issue with Siac is not the judge’s ruling on the admissibility of, or right to report on, some particular piece of evidence, as applies more generally. Rather, it is a minister deciding to withhold elements – and sometimes the whole thrust – of the case against an individual from that individual themselves. Lawyers are barred from discussing the evidence with the one person it directly concerns. If the plans go through, this power will no longer be wielded only in a tiny number of immigration cases, but could instead be invoked in any civil case where ministers deem it is required by “national security”, or – even worse – by a fuzzy notion of the “public interest”. The only comeback would be judicial review, where the punishing test of “unreasonableness” is that a minister be found to have acted so wildly that no rational person could have pursued his or her claimed aims that way.

The security state’s plea for a fair hearing is not being helped by the Cabinet Office’s failure thus far to publish all the evidence that it took, or even from whom the evidence came. Although it now claims to be seeking permission to name the companies, police authorities and indeed parliamentary committees who privately lobbied in this public consultation, for the moment their very identities remain under wraps. The bad old days, where MI5′s power was protected by an official refusal to acknowledge its existence, come to mind. That absurdity was scotched a generation ago, with the proper recognition that necessarily secret work could be performed by an acknowledged public body. Sadly, it seems that the security state retains its lazy preference for making its arguments in private correspondence – and in private courtrooms.

Law | guardian.co.uk

Judges deny students claim but declare government failed to properly analyse equality issues

Two teenagers who took the government to the high court claiming the near-trebling of tuition fees this year breached their human rights have lost their case.

Callum Hurley and Katy Moore, who were 17 when the case began in November, argued that raising fees to up to £9,000 a year from this autumn contravened human rights and equality legislation. But Mr Justice King and Lord Justice Elias ruled the government had acted legally.

The judges accepted some students would be discouraged from applying to university because of higher fees and said it was too soon to tell whether the poorest would be deterred.

They said the government’s analysis of equality issues was inadequate and failed to comply with public sector equality duties by not giving due regard to disabled students and those from ethnic minorities.

In his judgment, Lord Justice Elias said he did not consider it would be a proportionate response to quash the decision to raise fees to up to £9,000 a year and argued such a move would trigger administrative chaos.

However, he said Vince Cable, the business secretary, “failed fully to carry out his public sector equality duties”.

He added: “Whilst I have come to the conclusion that the secretary of state did not give the rigorous attention required to the package of measures overall, and to that extent the breach is not simply technical, I am satisfied the particular decision to fix the fees at the level reflected in the regulations was the subject of an appropriate analysis.

“Moreover, all the parties affected by these decisions – government, universities and students – have been making plans on the assumption that the fees would be charged. It would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.”

Moore is studying biology, chemistry, maths and history for her A-levels at Lambeth Academy, south London. She hopes to become a research scientist, exploring cells, diseases, new treatments and cures as a career. Hurley is studying for a level 3 BTec in web development at Peterborough regional college and wants to study IT at university.

The students claimed the fees increases would erect a barrier to higher education and threatened to widen the already large gap between rich and poor.

They were represented by Sam Jacobs, of Public Interest Lawyers, who argued there were two grounds for bringing the case. Firstly, the rise in fees was in breach of the right to education protected in the Human Rights Act 1998. That right does not guarantee free higher education, but it places curbs on steps that limit access to higher education, he claimed. Secondly, he said the government had failed to give due regard to promoting equality of opportunity as required under the race relations, sex discrimination and disability discrimination acts.

Women, disabled people and ethnic minority graduates tend to earn less over their lifetime than male, non-disabled, white graduates, Jacobs said.

Tessa Gregory, from Public Interest Lawyers, said the students were disappointed the court did not quash the regulations, but they were pleased with the recognition that the government failed in its duties to properly think through the equality implications of its decision.

The teenagers said they would both go to university.

The Department for Business, Innovation and Skills said: “We are pleased the court rejected outright the suggestion that our student finance reforms breach students’ human rights.

“The court recognised the consultation and analysis we carried out. It also recognised the extensive debate which took place, inside and outside parliament, on how those from disadvantaged backgrounds can be encouraged to enter higher education.

“Accordingly, the court has not agreed the claimants’ request to quash the regulations, which set out tuition fee limits. This means students and universities have the certainty to plan for the next academic year, and the government’s higher education policies remain the same.”

Public Interest Lawyers said: “The court made a clear declaration that the government, when it passed the regulations increasing tuition fees, failed to comply with its public sector equality duties.

“It found the government’s analysis on equality issues was inadequate. That the court made this finding in relation to such a key plank of the government’s higher education policy cannot but reflect badly on these rushed reforms.”

Law | guardian.co.uk

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Majority of published responses to proposed expansion of ‘closed material procedures’ into civil courts are highly critical

The UK’s reputation as a “free and fair democracy” could be damaged by excessive use of secret court procedures that the government aims to introduce, Northamptonshire police has warned.

The advice is among nearly 70 responses to the controversial justice and security green paper posted online by the Cabinet Office this week. More than 20 further submissions, however, including those from several large police forces, so far remain confidential.

The government’s proposed expansion of “closed material procedures” (CMPs) into civil courts is an attempt to prevent sensitive claims for damages being aired in open hearings.

The move follows the embarrassing torrent of actions brought against the intelligence agencies by former terrorist suspects such as Binyam Mohamed, a British citizen held in Guantánamo Bay, who claimed he was tortured while detained in jails, including in US custody.

Under the proposals, not only would ministers be able to order a hearing to be conducted in secret, but the proceedings would also deny claimants access to government evidence or witnesses – leaving them effectively untested in court. In addition, the final judgment could be wholly or partially withheld.

The controversial reform is supported by senior figures in the security community, notably Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee.

In his published submission, he argues that co-operation with foreign intelligence agencies such as the CIA will be endangered if secrets are exposed in court.

“It is essential that our courts are able to handle intelligence material, and that that material is properly protected,” Rifkind states. “It is a fundamental principle of intelligence-sharing that such exchanges are kept confidential.

“Publication of other countries’ intelligence material, whether sensitive or otherwise, undermines the key principle of confidentiality on which relations with foreign intelligence services are based and has the potential to cause serious harm to future intelligence co-operation and thereby undermine the national security of the UK.”

Rifkind calls for additional protections, noting that “we do not consider that [secret courts] offer sufficient surety to our allies”, and suggests adopting a US-style “executive veto” on release of intelligence material – although he admits such powers might not be compatible with the European convention on human rights.

Lord Carlile, the former independent reviewer of terrorism legislation, also expresses support for CMPs, “where it is necessary for the fair and balanced disposal of the case including national security issues”.

The Serious Organised Crime Agency (Soca) also backs the development but says they should only be used “in exceptional cases where a fair trial would be impossible if a party were unable to rely on the sensitive material to defend a claim against it”.

But a majority of the published responses are highly critical. Northamptonshire police’s submission states: “It is proposed that CMPs are available whenever the secretary of state makes the decision that the disclosure of sensitive material will be damaging to the public. This is very widely drafted and could result in its misuse. This could be used to encompass material concerning crime prevention tactics, police informants and intelligence led operations.

“The impact of the overuse of CMPs would be to damage the UK reputation of a free and fair democracy.”

The Northamptonshire force also questions whether they are consistent with article 6 of the European convention on human rights –the right to a fair trial. The force’s chief constable is spokesperson on ethics for the Association of Chief Police Officers (Acpo).

The Equality and Human Rights Commission is damning in its rejection. “Closed material procedures are inherently unfair to the excluded party,” their response says. “The right to know the evidence given by the other side is such a fundamental principle of natural justice, it can never be fairer to adopt a closed material procedure in order to determine a claim, even if the alternative is that the claim will be struck out.”

John Hemmings, the Liberal Democrat MP who has challenged privacy hearings in parliament, observes: “There is very clear evidence that secret hearings are unreliable. This is obvious from the many false allegations of blackmail that have been made in recent privacy injunctions … When there is secrecy there is the potential for a disconnect between the judicial proceedings and reality.”

The Police Service of Northern Ireland expressed concern about the integrity of inquests in Northern Ireland, particularly in historical cases from the Troubles, where coroners currently dispenses justice based on a “full consideration of the facts, sensitive or otherwise”.

Among other organisations that have submitted critical responses are Amnesty International, the Committee on the Administration of Justice, Justice and the Guardian.

Acpo’s submission enters a final plea: “There may be potential for confusion regarding the use of abbreviation CMP for ‘closed material procedures’ with the long established use of that abbreviation in the covert world for ‘covert monitoring post/s’”. So that surveillance secret is now out.

Law | guardian.co.uk

Two-thirds of self-employed barristers and half of the employed Bar would consider working in an alternative business structure, according to an extensive survey of the Bar.

Barristers’ Working Lives, the first of a series of biennial surveys by the Bar Council and Bar Standards Board, offers a profile of the Bar, and the aspirations and intentions of those who work in the profession.

Of the 3,000 barristers who took part in the research, nearly three-quarters said they would opt for the same career again, given the choice.

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A leading personal injury lawyer has accused government ministers and the Association of British Insurers of “stoking” the myth of the compensation culture.

A “stream of prejudice” against personal injury (PI) claimants has given rise to measures such as the Jackson reforms which, he argues, will make it more difficult for injured workers to claim compensation, and the government’s reining in of whiplash claims.

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