This first appeared in the on line legal and current affairs journal THE FIRM
by Ian Hamilton QC
The magnificent distortion of English history by Locog was largely financed by a magnificent distortion of the law. The question arises. Will that law be enforceable in Scotland?
The law is contained in the innocent seeming UK Olympic Act 2006 which appears to apply throughout the United Kingdom. Among its provisions is to create for sale certain words and phrases relative to the great celebration of athleticism presently taking place. Locog has raised £700 million pounds by the selling of advertising to big business. Coca Cola and McDonalds, the purveyors of food fit for athletics in training, are among the foremost. So far so good.
The distortion arises when we look a little closer at the enforcement of the sponsors’ advertising rights. It has not been left to the sponsors to protect their rights in the civil courts. This would usually be the case. If someone were to claim to be the man who stole the Stone of Destiny I could sue him for violating my intellectual property, I think. Similarly Mcdonalds could sue a rival firm who claimed to be caterer to the games.
This is not what is happening at all. A whole host of names have been assigned to the advertising powers of the sponsors. Locog claims it has an intellectual copyright in such names as “Gold”, “Games”, “London”, and even in time itself for the year “2012” may not be used in your adverts. This is a bit much and I doubt if any civil court would sustain such a claim to a property right in these common words.
Fearing that this might happen all the power of the criminal law has been brought into force. Anyone, other than a sponsor, using such words, and others like them, in their advertising is liable to prosecution in the criminal courts and a very hefty fine.
This is repugnant to Scots law. Our law is a reserved subject, reserved to us since 1707. Even if offences can be created by Westminster our laws essential purpose remains. That purpose is to preserve society; not to preserve the advertising campaigns of international corporations. I assert that the criminal powers of the Olympic Act 2006 are so repugnant to the Scottish conception of justice that our courts would hold them to be frivolous and unenforceable. At least I hope they would.
Dicey and Bagehot have much to say on the subject of Westminster sovereignty. Put bluntly, as we used to say in the barrack room, they can even make a man pregnant; but they can’t make him love the bastard. Our Scottish Courts have shown a welcome independence against some of the follies of Holyrood’s legislation. It is to be hoped that they will show the same robust courage with Westminster’s.
And will that dismal civil servant, the Lord Advocate, really waste our courts’ time with such prosecutions. Someone should ask him