The Last Ditch

There is nothing Conservative about this Government

Anthony Peto QC: A very un-British Bill – my response to Robert Buckland MP.

Conservatives are supposed to defend ancient rights. In their hands the great principles of English Law such as "innocent until proven guilty" and the rules of Natural Justice should be much safer than with progressives who openly seek to sweep away ancient rights to build a new order.

Yet it was John Major who began the present un-conservative trend when he abolished the right to silence - a key element of the presumption of innocence. If a man is accused, it is for the prosecutors to make the case against him. Nothing should properly be inferred from his refusal to co-operate. So it used to be, but no more.

And now it's Ken Clarke who is sweeping into the trash can of history the principle of open justice. He is seeking to introduce secret courts in circumstances where "national security" is at stake. What does "national security" mean in such a context? Anthony Petro QC tells us in the linked article that evidence about a confession having been extracted by torture

...was successfully suppressed by the government on the grounds that it would damage national security...

Not exactly the most encouraging example.

Clarke tells us that we need secret courts to protect our intelligence sharing relationships with other countries. David Anderson QC, the independent reviewer of Terrorist Legislation, has branded that a "scare tactic".

Former DPP Lord Maconald has said that 

Mr Clarke’s comments look like a smokescreen for plans which are aimed not at keeping the British people safe, but at sparing the embarrassment of the security services when they get mixed up in wrongdoing. Instead of promoting this thoroughly un-British legislation, which is designed to make our courts secret as though we were living in Europe in the 1930s, Mr Clarke and his colleagues in government should concentrate on holding the security agencies to account when they break the law.

Lest you think that these are just the voices of lily-livered sympathisers with our enemies, consider the words of the former top legal advisor to the British Army in Iraq, Colonel Nicholas Mercer

The justice and security bill has one principal aim and that is to cover up UK complicity in rendition and torture. The bill is an affront to the open justice on which this country rightly prides itself and, above all, it is an affront to human dignity.

 
The fact that some of those individuals who are complicit in rendition and torture can not only assist in the drafting of the bill but also vote to cover their tracks is a constitutional scandal.

The bill attacks the sacred principle of the Rule of Law that "be you never so high, the law is above you." It removes a citizen's right to bring a civil action against high officials for violations of their personal rights. As Anthony Peto QC says, 

These rights are so fundamental that for centuries they have been called the rules of “natural justice”.  This brand of justice has “Made in England” stamped all over it. It is our proudest and most enduring national product. This Bill would tarnish the brand for ever.

Could there conceivably be anything less "Conservative"?

Why can't our security services, like those in other countries, give evidence in court? If that threatens the secrecy of their activities, they can give evidence from behind a screen and via a voice changer, provided the judge is duly satisfied of their status. Then their evidence could be tested, they could be cross examined and justice could be done. Yet the British State prefers to screen them from scrutiny. It prefers to suppress evidence of their wrong-doing. It is entirely out of its box; a self-regarding beast operating in its own, not the national, interest. 

I have never been more sure that the greatest enemy of my liberty is the British State. Nor more sadly aware that this does not vary according to the politicians in charge. There could be no better evidence than this odious bill in which the state seeks to protects its own at the expense of those who are supposed to own it. It rather suggests it thinks it owns us.

Disgusting lawyers

Indian gang rape: suspects charged with rape and murder - Telegraph.

The rape and murder of a 23 year old student in India is a hard case that risks making a lot of bad law. Particularly in a society where the legal profession has lost its ethical way. I could not believe it when I read in the linked article from the Daily Telegraph;

Lawyers at the court in New Delhi told AFP that they would not defend the suspects, meaning that the government would have to appoint advocates for what will be a fast-tracked trial. "We have decided that no lawyer will stand up to defend the rape accused, as it would be immoral to defend the case," Sanjay Kumar, a lawyer and member of the Saket District Bar Council, told AFP.

I was a criminal defence lawyer, briefly, at the beginning of my career. I enjoyed the actual advocacy but did not have the temperament for other aspects of the job. While I was doing it though, I did my best for my clients, regardless of my personal feelings, because that was my duty. For all the sneering I encountered from less-enlightened policemen and other bar room "thinkers" I met during that time, it was - and is - an honourable and necessary task. When, that is, it is performed in accordance with the profession's ethics.

I am disgusted that some of my learned colleagues at the Indian Bar should have refused to defend the accused men in this case. It is worrying if the most populous Common Law jurisdiction in the world has so far forgotten the principle of the presumption of innnocence. I well understand that the practice of law is a business like others in most respects. The advocates in question are no doubt afraid of being attacked by the uneducated mob for "siding" with men accused of a vicious and wicked crime. They no doubt fear losing future business. Perhaps they think their foul, populist declaration will win them goodwill.

However lawyers are not mere mercenaries but samurai. They fight for those who pay them, regardless of their own view of the issues, but they fight according to their own code. If they are not prepared to adhere to the profession's version of bushido, then a career in some other field beckons. Frankly, any employers or customers in that new field should worry. Men of such low principles will probably always put their self-interest before that of those who pay them.

Shame on you, Sanjay Kumar, and shame on the so-called lawyers you represent. You are supposed to serve justice, not the mob. If this report is true you should all be struck off.

A dangerous day

Today is a dangerous day for freedom. Lord Leveson's report has been read overnight by the politicians and civil servants and will be revealed to us this afternoon. All we know is that it's 2,000 pages long and composed by, and under the advice, of people who trust the state more than they trust Rupert Murdoch.

I am not sure any sensible person should trust either, but here's a suggestion as to someone we should definitely distrust; anyone who says freedom (the absence of external restraint) can strengthened by regulation (external restraint). All such people are - at best - dishonest. They are not confined to the overtly authoritarian Labour and Liberal Democrat parties.

Listen for their characteristic siren call today. They are your enemies.

Protect your Freedom – Please retweet and respond!

Protect your Freedom – Please retweet and respond! — Anna Raccoon.

I refer my gentle readers to Anna's linked post today. It is important. The state is seeking extended powers to interfere in personal relationships between citizens with legal capacity to make their own decisions. Telling social workers to "get lost" will result, if such powers are granted, in actions incompatible with a free society. Telling self-selected statist busybodies to "get lost" is often, of course, the first duty of a free citizen.

Most responses to the Department of Health's consultation will be, in the natural course of things, from the aforementioned self-selected statist busybodies - either those serving the state or their political cheerleaders.

Please therefore consider following the links in Anna's post or this one to obtain the consultation questions and then file your own responses by email or post. I have reproduced my own responses (submitted in my real name) below but please respond in your own words. You might like to consider not picking up the civil servants' poor use of English, for example, as I failed to resist doing. Your objective is to persuade, after all. Good luck with that.

Question 1: Do you agree that there is a gap in the proposed legislative framework for people with mental capacity, which this power would address?

No

Question 2: What are your views on the proposal that there should be a new power of entry, enabling the local authority to speak to someone with mental capacity who they think could be at risk of abuse and neglect, if a third party prevents them from doing so?

I strenuously object to the creation of any such power. In fact I would welcome the abolition of most existing such powers.

Question 3 (for care and support professionals working in adult safeguarding): How many times in the last 12 months, have you been aware of a situation where, had this power existed, it would have been appropriate to use it? What were the circumstances?

N/A

Question 4: What safeguards would we need to ensure local authorities use such a power effectively and appropriately?

Any such safeguards would merely raise the question "Quis custodiet ipsos custodes?" There is no appropriate use of such a power. A person with legal capacity should never have his or her choices second-guessed by the state. This is a dangerous, immoral (perhaps even amoral) proposal incapable of being ameliorated by safeguards.

For example, would the following provide adequate safeguards?

• A warrant would be applied for from a Circuit Judge (e.g. a nominated judge of the Court of Protection).

This would only help if the legislation granting the powers was clear (as it could not by definition be) that the state has no right to interfere in the life choices of those with legal capacity. Since the intent of the proposed legislation is precisely to create such a right, the judge would have no ability to restrict such action and the warrant would merely use the judiciary as camouflage, further soiling its reputation for independence in the process.

• The local authority would present the court with evidence of the need for the warrant.

See above.

• The local authority would ensure that there is a process by which the occupiers of the premises understand that they can complain about the way in which a power has been used. The local authority would have to verbally inform the affected persons how they might access that process

See above. There is no point in a right to complain about such a loss of liberty, if it is backed by law. One wonders, by the way, how they would inform anyone other than "verbally". Draw them a picture, perhaps?

Question 5: Do you have any other comments?

The British State is too powerful. After decades of growth to the point where it now consumes the majority of national resources and is strangling to economic death the nation it purports to serve, it is unsurprising that it attracts employees who have no sympathy with personal liberty. In my view, no-one who respects our right to live life as we please would wish to be part of such an aggressive apparatus. Once the state is staffed by substantial numbers of such people, proposals like these are to be expected and it is the job of government, as the people's representative, to oppose not promote them.

No further extension of the state's already-excessive power can possibly be justified. Any government worthy of the names "conservative" or "liberal" or "democrat" would be slashing its powers in order to set the British people free not listening to calls to authorise meddling in the lives of those with legal capacity.

What is marriage?

I am reluctant to join in the current brouhaha about the definition of marriage. Firstly, I regard it all as statist agitprop to trap us into conflicting positions that can only be 'resolved' by the very last thing we need; more state interference. Secondly, I suspect it is a ploy to flush out 'homophobia' so as to give a now entirely redundant 'gay rights' campaign a new lease of life.

There is no good reason for the state to be involved in defining marriage legally. It should not be so much a civil right as a civil rite. It is essentially a personal relationship that can only meaningfully be defined by its participants in the context of their own beliefs and values. The state's current involvement achieves, and its proposed future involvement will achieve, precisely nothing that could not be done better by a combination of civil contract (regulating property relations between the parties) and statute law setting out the responsibilities and rights of parents.

It is particularly amusing that gay people demand redefinition of the current legal institution of marriage under a banner of 'equal rights.' Marriage under English Law is a profoundly unequal institution. If people were as diligent about entering into a marriage contract as they are about buying a house, most men would be advised against and most women would be advised for. Not because the rights of a couple during a marriage are unequal but because of the way the law works on exit.

Be that as it may, as a libertarian I am happy for people to enter into personal relationships of whatever kind they like (and using whatever terminology they like) as long as they take responsibility for their offspring (if applicable) and each other and don't expect others to support their lifestyle choices. If 100 humans want to enter into a mass marriage in whatever combination of sexes and sexual orientations they please, that's fine by me. I only expect them to be able to afford a sufficiently large house and matrimonial bed without recourse to the public purse.

Seriously, I don't care how many are involved. Bigamy would be one of the first crimes my libertarian govenment would repeal. I don't care what sex they are. I don't care what sex they have. My only legal requirement would be that they are of legal age and mental capacity to embark upon their adventure.

Let me hastily pacify shocked social conservatives and people of faith among my readers. I am happy for my religious friends to define marriage their way and for their church to teach that any other way is wicked. Provided, that is, they demand no earthly sanctions for breach of their rules. Given what they believe God has in store for sinners, earthly punishments anyway seem a bit de trop. It is the job of churches and the faithful to evangelise sinners and lead them to the right moral path. The law is (or should be) just there to stop us getting in each others' way. It should certainly not be there to tell us how or what to think.

You may protest (and with good reason) that the law needs to define marriage at present because so many laws discriminate between those married and those not. That problem is simply solved. Neither taxes nor 'benefits' nor legal rights should vary by reference to what is, ultimately, a personal choice. All humans should be equal before the law, regardless of their household arrangements.

So let me answer my own question before turning it over to you gentles to answer it better. Marriage is a personal matter which need not concern me unless it's one in which I am participating. Do what you like. Preach what you like. Accept or don't accept other peoples' definitions of marriage or lifestyle choices. Please take responsibility for your partner's (or partners') well-being and welfare, as well as for that of any children you have with anybody inside or outside your marriage. Please don't expect the rest of us to enforce your view on other - or to refrain from ridiculing yours if it strikes us as amusing.

I am finally old enough to know that the more right I feel I am about something, the more likely I am to be wrong. So please feel free to correct me in the comments.

Why Wikipedia is dark today

 

We could all be dark if this legislation goes ahead. This is a classic example of Big Government treading on the people in the interests of Big Business. Please spread this video (or create your own content on your blog, Facebook page or Twitter) to get the message out. Wikipedia is showing us what our digital world could be like if SOPA and/or PIPA become law.

I'm 'Enery the Eighth I am

Concern over use of 'Henry Vlll' powers to overturn acts of parliament | The Law Gazette.

It's time for every liberty-minded blogger who has retired, jaded, after the fall of Labour to return to the fray. Why? Because, in the words of Joshua Rozenberg in the Law Society Gazette last week;

The coalition’s approach to legislation is neither conservative nor liberal. That much is clear from the new Quangos (Bonfire) Bill, or the Public Bodies Bill as it is more properly called in parliament

The Bonfire of the Quangos is a notion much to be applauded. What is emphatically NOT to be applauded is that the Coalition has slipped into the Bill a provision allowing ministers to amend Acts of Parliament. Sound familiar? That's just what Labour ventured in the Legislative and Regulatory Reform Bill. And it's just as wrong. Witterings from Witney (to whom a tip of the hat) quotes from a letter he received from William Hague, Oliver Heald and Richard Benyon (his then Conservative MP) about Labour's attempt to subvert Parliament's power;

I can assure you that the Legislative and Regulatory Reform Bill will receive a robust opposition from my colleagues and I in Parliament. We recognise this as a devious means by which Ministers will seek to avoid the sovereignty of Parliament. It is another example of the contempt with which this Government holds Parliament and our national institutions.

Now all three gentlemen are about to support the introduction of its equivalent. The notion that this government is in any way a greater friend of liberty than the old one has been exploded. Ladies and gentlemen, to arms!

Hard cases and bad law?

Divorce laws should not be made by the grotesquely rich | Catherine Bennett | Comment is free | The Observer.

Pace Catherine Dorothea Bennett, Oxford grad., former Baroness Sackville and current squeeze of by-no-means-short-of-a-bob-or-two John Humphreys, laws are not made by those who are ("grotesquely" or otherwise) rich. In England & Wales they are made by the judges or Parliament. In the former case, highly experienced ex-advocates adjudicate real-life situations, setting binding precedents. In the latter case ex-postmen and PR men adjudicate the outcome of future situations based on their sick imaginings and/or grotesque political views. Give me judges and reality any day.

As this case illustrates, judge-made law evolves as society changes. At law school I was taught that pre-nuptial agreements were void ab initio as being contrary to public policy, which favoured the institution of marriage. That is now no longer true. While some of us may regret it, our society no longer regards marriage as so important. More than half Britain's children are born out of wedlock, after all. The Common Law of England is quietly doing its stuff as it has, reliably, for centuries. This flexibility, Ms Bennett dismisses haughtily:-

It is ... ancient tradition for the law never to be decided quite firmly enough that ... rich misers and resentful spouses cannot challenge it in future, which ensures that lowlier divorcing couples can never receive clear advice from their lawyers.

Judge-made law gave England & Wales one of the best (and certainly the most flexible) legal systems in the world. If ever you find an English law stupid, enquire further. You will usually find it originated in Parliament, not the courts. As a law student, I once asked Lord Denning if it was right, in a democracy, that he - an unelected judge - had had such an influence on English Law. He replied jokingly "Given the quality of the members of the House of Commons, young man, I think you are better off with me." He had a point. Democracy is the least bad way yet implemented of choosing men and women to administer the affairs of the state but does not guarantee the quality of legislators. English judges gave you equality before the law, habeas corpus and innocence until proven guilty.  Parliament gave you control orders.

Ms Bennett seems anyway far more exercised by the amounts at stake than the principle under discussion. Perhaps it's envy? Perhaps the amount at stake when she divorced the 7th Baron Sackville was not as much as she could have wished?

Of course it is an ancient tradition that English divorce law should be decided by cases brought by impossibly rich misers or their resentful spouses.

It's true of course that the judges more often adjudicate on the troubles of the rich. That doesn't make the precedents less useful. In fact, let me put this in terms our Dorothea might approve of; the rich pay a kind of "progressive" taxation whereby the money they spend on litigation benefits the little people. Arguably, it was the first such taxation in our history.

The thrust (if not the tone) of her point, when she finally gets to it after tedious paragraphs of envy-fuelled ad hominem (and gossipy trivia more worthy of Hello than The Observer) is not as bad as one might fear;

...if the Radmacher precedent saves just a few spouses from archaic laws and modern lawyers at the same time that it propels ex-trophy wives into gainful employment, the eponymous divorcee probably deserves her triumph. If nervous couples are thereby nudged up the aisle, the Church of England might also find itself indebted...

Quite. And can I just add that the only person (apart from the Supreme Court judges and my learned friends on both sides) who comes out of the Radmacher case with honour is the lady's wise father. Without his stern defence of her interests when she was "head over heels" in love, there would have been no pre-nup to uphold. Well done, sir.

What rights are conferred by your son being murdered?

Jon Venables could be killed if his identity is revealed, key judge warns | UK news | The Guardian.

Any parent feels for Denise Fergus. We can sympathise with her unabated anger against the two young children (now adults) who killed her son. But her insistence that as James Bulger's mother she has a "right" to know what his killers are doing now is quite wrong. They are so loathed for what they did as children that, without new identities, they would have no chance of a law-abiding life. If charged with another crime, they would have certainly have no chance - under their real names - of a fair trial.

Their sentences are served. Perhaps some may feel they were not long enough. Others may feel they should have been executed. But they are entitled to the same chance to sin no more any of us would expect when we had paid the price of a crime. Lady Elizabeth Butler-Sloss's original order protecting their identity was therefore both wise and fair. We can forgive Denise Fergus for her anger and hatred. We can perhaps even understand why she wants her son's killers at the mercy of the mob. But it would be very far from justice.

Politicians have repeatedly exploited this tragic case. Tony Blair used it as his "broken society" moment; in effect blaming the Conservatives, not two profoundly disturbed children (and the parents who raised them), for Jamie Bulger's death. Michael Howard was no better. As Home Secretary, he gave in to a Sun campaign for their minimum sentence to be extended.  Lord Donaldson gave the civilised view of that incident when he described it as "institutionalised vengeance" by a "politician playing to the gallery."

Someone close to Jack Straw recently decided to announce that Jon Venables was back in custody. Why? There was no need disturb Ms Fergus's sleep or arouse the vengeful mob. Presumably it was an attempt to make political capital by associating the government with tough action against a hated individual. New Labour's political instincts have failed it again however and the gambit has gone badly wrong. I am sad that some usually-sensible voices in the British blogosphere are, in effect, siding with a lynch mob. They have been duped by cynical politicians and are playing right into their hands.

The true meaning of law?

I think this TED lecture is excellent (and equally applicable to Britain). What do you think?