Brian Haw

[liadnan]

Though the Court of Appeal have now held that despite the appallingly shoddy drafting of the legislation preventing unauthorised protests in Parliament Square, the section does indeed apply to Brian Haw, for the moment he remains (unless things have developed further since last night's raid).

The response from the Police and Government seems pretty ridiculously pathetic - see here for last night's antics.

Comments

Part 2.

[gmh.livejournal.com]

In theory Parliament can indeed legislate in any way it desires - although that is limited by their ability to command a majority in the Commons, a majority that might be dificult to gather for the Herod (Children) Bill. Even if the bill passed, there are a range of safeguards on implementing it.

Firstly; although Parliament may make the laws, the judiciary has the duty of determining their usefulness and application.

Secondly; as has been demonstrated recently, a party leadership is not above the deliberate misrepresentation of facts to their own backbenchers to secure a majority.

Thirdly; were this the case, then a whipping system should not be necessary. The existence and use of party whips indicates that the party leadership can and will punish those within the party who do not tow the approved line.

Fourthly; as has also been demonstrated recently, the current government is not above the worst sort of crude populism in order to inflict its views on the judiciary in their interpretation of UK laws.

(How autocratic does a government have to be when you're cheering on the Law Lords as defenders of freedom and justice for all?)

Rather than appeal to the parties concerned in enacting the laws, the current government appears inclined to appeal to the tabloids (and their owners), knowing that the tabloids are effective at modifying popular opinion.

There is no "allegedly" here. The governemnt was democratically elected

As were various rather unpleasant characters in world history; it didn't make their governments champions of democracy.

I'm not (of course) saying that this government has done anything like outlawing other political parties or rounding up and imprisoning dissidents without trial; yet the current UK political system is sterile; the effect of TINA on the political landscape has been to drive the two major parties into fighting on very similar ground with very similar policies; and any genuinely different parties are marginalised.

This has the knock-on effect of lowering voter turnout; faced with Tweedledum or Tweedledee, a fair proportion of the population have simply become alienated by the whole process; which gives more control to the major parties, as it removes the political sphere from everyday life.

I would contend that a government which acts knowingly in its own interest at the expense of political diversity in the country as a whole has no business calling itself democratic; it may have been elected by the system; but apparently feels no reciprocal obligation to preserve that system in a working order.

What practical sanctions do you advocate for behavior running counter to your opinions, who specifically do you see these sanctions being applied to, and what mechanisms do you intend to employ to apply the sanctions?

To the first; individual noncompliance with the laws in question (in this case, protest in Parliament Square) and encouragement of others to join in dissent (as per this argument).

As an individual, I can only tell myself what to do; I do not support the direction of others' actions - ultimately, everyone has to make their own mind up, and that can not and should not be ordered by others.

As to alternatives; yes, there are, on a personal level, on a local level (e.g. LETS schemes, co-operatives, small-scale collaborations and the like); and, frankly, I think the nation state is an overlarge, cumbersome and outdated entity.

But that's several thousand words, and LJ isn't the place for it.

Re: Part 2.

[f4f3.livejournal.com]

I won't have time to reply immadiately, but can I immediately thank you for a challenging and well thought out response.

Punch and Judy, needless to say, will be back after this break *grin*

Re: Part 2.

[f4f3.livejournal.com]

"Firstly; although Parliament may make the laws, the judiciary has the duty of determining their usefulness and application."

Really? Last time I checked, the judiciary only had a role to play if the law was ambiguous or incompetent - only then could they interpret it.

Secondly; as has been demonstrated recently, a party leadership is not above the deliberate misrepresentation of facts to their own backbenchers to secure a majority.

And so has it ever been - and they always pay for that.

Re: Part 2.

[liadnan]

Really? Last time I checked, the judiciary only had a role to play if the law was ambiguous or incompetent - only then could they interpret it.

No, this is wrong. It has always been the job of the judges to interpret legislation: it is merely more difficult to do so when it is ambiguous or incompetent (whatever incompetent means in this context). Purposive interpretation has been going on for many a long year - see Pepper v. Hart, just for a start, interpretation in such a manner as most complies with international obligations is a principle established for some centuries, and this is particularly the case with EU legislation -and see also Factortame No 2-; the HRA specifically requires that legislation be interpreted in a manner that complies with the convention, and so on and so forth.

Re: Part 2.

[f4f3.livejournal.com]

I think we're more or less in agreement here, with the provisio that judges are unlikely to be asked to interpret legislation UNLESS it is ambiguous or incompetent.

I didn't mean to say that judges have no interpretative role - only that they cannot rule in contradiction to a clearly expressed law, unless that law is incompetent (in this context I intended that to mean where it runs against another piece of legislation - as with the Human Rights Act, or when the enactment process was flawed). I well remember cases where the judges made every attempt to discriminate their judgement from existing law which, to all intents and purposes, was bad law, but which was clearly expressed. There is a limit to teleological interpretation.

Re: Part 2.

[liadnan]

True.
Very little legislation can really be said to admit of only one meaning though. But as you say if it really does then it's unlikely anyone's going to be arguing about it: a judge is only going to make an explicit decision about what a statute means either if the point has been put in argument or (much less likely) it hasn't but they think it should have been.

Haws case is particularly interesting because the principle against retrospective legislation is a strong one, which the Divisional Court stuck to, but the CA went for a purposive approach, knowing as everyone did that the section in question was actually directly aimed at Haw.

Re: Part 2.

[f4f3.livejournal.com]

Yes - retrospective laws were always held up as bad laws in jurisprudence classes, and this has done nothing to change my opinion.

Re: Part 2.

[f4f3.livejournal.com]

Thirdly; were this the case, then a whipping system should not be necessary. The existence and use of party whips indicates that the party leadership can and will punish those within the party who do not tow the approved line.

A good argument against party government, but we do live in a party system.

Fourthly; as has also been demonstrated recently, the current government is not above the worst sort of crude populism in order to inflict its views on the judiciary in their interpretation of UK laws.

Given the staunch Conservatism of our bench, I'm a not really inclined to condemn any attempt to appeal to the electorate over their heads.

(How autocratic does a government have to be when you're cheering on the Law Lords as defenders of freedom and justice for all?)

The last time I remember Lord Denning was kicking up a fuss. Of course, he was pretty much in a minority then.

There is no "allegedly" here. The governemnt was democratically elected

As were various rather unpleasant characters in world history; it didn't make their governments champions of democracy.

You don't have to be a champion of democracy to be democratically elected - even abolishing local authorities who disagree with you doesn't make your government illegitimate.

the current UK political system is sterile; the effect of TINA on the political landscape has been to drive the two major parties into fighting on very similar ground with very similar policies; and any genuinely different parties are marginalised. This has the knock-on effect of lowering voter turnout; faced with Tweedledum or Tweedledee, a fair proportion of the population have simply become alienated by the whole process; which gives more control to the major parties, as it removes the political sphere from everyday life.

I don't agree - in the Scottish Parliament the Tories are the third force, and very nearly the fourth. In many parts of the country independents flourish. And don't forget the rapid growth of a genuinely populist alternative party in many English local authorities - and given the adoption of proportional representation, the BNP would surely win a few seats in Parliament

Re: Part 2.

[liadnan]

I can't actually think of a single member of the High Court, or Court of Appeal bench in England or in the House of Lords at present who I would describe as a staunch conservative, with or without a capital C. Unlike Denning, who was certainly very socially conservative and almost certainly would have consistently voted Conservative. (He was also a bit of a shit as a local Hampshire landowner, but that's by the by.) Remember why he, despite being the one judge left who wasn't bound to retire, actually eventually did so under pressure and had a just published book of his pulped?

Re: Part 2.

[f4f3.livejournal.com]

I don't actually remember that about Denning, probably because it happened after I graduated - I sense gossip!

If it's really the case that the senior bench has undergone such a change from the 80's, then I'm quite chuffed but very surprised.

Re: Part 2.

[liadnan]

Few of them are what one might call radical (perhaps Hoffman and until his recent retirement Steyn in the Lords, Laws in the CA) but I certainly don't think of them as staunch conservatives. The biggest tendency is probably "classical liberal". I really don;t believe many are Tory party members (the only judge -not High Court, at least not properly- whose political affiliations I know is a New Labour enthusiast). Of course the concept of law (or at least as understood in English law, I am deliberately avoiding matters north of the border, of which I know nothing) is I suggest inherently "conservative" in the sense of valuing coherence and consistency over radicalism.

Denning published a sequence of books towards the end of his career in the last of which he made extremely ill-judged remarks about black people and if I remember rightly (the run really was pulped and I have only ever seen one copy) black lawyers and their capabilities specifically. He apologised, and his apology was accepted (by the leader of the black lawyers association) but the damage was done, and though I don't believe he was guilty of hardline bigotry or express racism I do think what he said betrayed a certain racially patronising mindset and a failure to appreciate what might cause offence (those are clumsy terms but I hope you understand the distinction I'm making). It was taken so badly that he resigned in the furore -all other judges of his age were subject to automatic retirement, but he was exempt from those provisions because he was appointed to the High Court bench before they came in (he became a judge very young indeed).

He should also be remembered for his regrets that the Guildford 4 weren't hanged and for several comments, observations, and purple passages in his judgments which betray, to my mind, a rather Little Englander perspective.