THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain

Posts categorized "Law" Feed

Who serves whom?

We don't call them police forces any more. That's too explicit an acknowledgement of their role as the enforcers of our all-powerful state. Policing, God help us, is now a 'service'.

The question is; whom do our policemen serve? Is it us, the public, or the political class that guarantees their unfunded pensions from the incomes of taxpayers yet unborn? If, as they claim, it's the public, why does it sometimes feel they are serving us in the agricultural sense; as a bull serves a heifer?

Ordinary people don't believe the official crime figures because they don't accord with our experience. For years the Establishment line has been that the figures are accurate but that our fear of crime is the problem. We are neurotic and should be more trusting of our benevolent masters. Yeah right.

PC James Patrick, an analyst with the Metropolitan Police 'service' recently gave evidence to a House of Commons committee that the figures are improperly manipulated by senior officers to make police performance look better. He said

Things were clearly being reported as burglaries and then you would rerun the same report after there had been a human intervention, a management intervention, and these burglaries effectively disappeared in a puff of smoke.

How embarrassing for the political class that has used the rigged numbers to assure us it's doing its job of public protection! It seems our 'neurotic' belief that they were feathering their own nests while not giving a flying expletive about us except as sources of feathers was well-founded.

I have been waiting with interest for the state's response to this revelation. And, the Alistair Campbell approved interval for the story to die down having elapsed, here it comes. The Times reports this morning that PC Patrick has been placed on 'restricted duties' and forbidden to speak to public or media. The whistleblower has received his usual reward.

So that's clear then. Lying to make the state look good is fine. The public has no right to know the truth about the performance of the police service it is forced to fund. The career of any public-spirited person with a sense of duty and honour is unlikely to advance in the Met. In marked contrast to that of an officer who heads a botched operation that blows the head off an innocent man, for example.

Nothing to see here folks. Move along now please or you might just find yourself being served.


What you are, not what you want

I learned during my long-ago university days of the key historical change from 'status' to 'contract'. In a sense, modern civilisation began when, not only were rulers subject to the law, but your legal obligations depended not on who you were but what you had agreed.

No more jus primae noctis or knight service. Your obligations depended upon the contracts you entered into. Moderns might think themselves 'wage slaves' because of a real or perceived lack of job opportunities, but their employer had no claims over them qua employer, only by reference to their contract of employment. Their serfdom was therefore metaphorical at most.

As recently as the 1970s then, this was seen as progress in itself and as a key enabler of progress. It was a thoroughly civilised way of organising human relations. Modern society was not possible without it. Indeed my legal history lecturer (leftist though he was) presented it as a key enabling factor of the industrial revolution and therefore of all modern prosperity.

Yet the drift back to status was already well underway. English law, for example, limited an employer's response to the breach of contract involved in refusing to work if it was in the context of a protected strike lawfully organised by a trade union. The status of being under the protection of a trade union (a modern descendant of a medieval guild) alters your employer's legal rights and - in a certain sense - justifies your breach of contract.

For a long time the police operated with the same power of arrest as any other citizen. If someone commited a felony (now an 'arrestable offence') you or I could arrest them and so could a copper. The only difference was that he was paid, trained and expected to do it. I always thought that was a wonderful check and balance on police power. It's a dangerous thing to have a professional police force because, among the honest decent people attracted to such work, there is bound to be a higher-than-average proportion of thugs and bullies. Bossing people around attracts bossy people.

Now the status of being a police officer or enjoying one of a large number of other state-granted statuses, confers special powers of arrest, search, seizure and forced entry. Even, as we have seen in recent days, forced entry to a mother's womb.

CoyoteLandlord and tenant law tends to assume (ridiculously in the modern era when he might be Google or Microsoft and his landlord might be your mother's pension fund) that a tenant is a weaker party entitled to special protection by virtue of his status.

Similarly consumer legislation operates on the basis of a cartoon caricature of a buyer like Wile E Coyote; endlessly supplied with disappointingly non-lethal-to-road-runners goods by ACME.

The Unfair Contract Terms Act 1977 specifically prevents people from entering into, or at least from being bound by, contractual obligations, based on their status as 'a person dealing as a consumer.'

The notion of 'positive discrimination' confers for the first time in law an actual right to be racist (if you ignore, as I do with utter contempt, the socialist claptrap about racism being by definition a problem exclusive to white people).

The concept of 'hate crime' makes it more serious to insult, hurt or kill people enjoying a specially protected status. Current law thinks some deaths diminish me more than others. I disrespectfully disagree.

Your status as a citizen imposes all kinds of obligations on you. For example you must surrender a percentage of your earnings to the state, pay your local council for the privilege of living in your own home and hand over 45% of your parents' wealth above a certain value on inheritance. 

It would be amusing if it were not so sad that modern 'progressives' have for decades been busily restoring a key concept of feudalism and systematically undermining a key legal foundation of post-feudal prosperity. Their labels may not openly be 'lord' and 'vassal' but their world view is founded just as much on different rights and duties for different classes of human.


Thought-Crime or mere Expatitis?

I often wonder how different my view of today's Britain would be if I had not lived abroad for 20 years. Expats often find it hard to resettle in their home country. Sometimes they are not "comparing apples with apples" when reviewing their life in a low-wage country against that in the capital-intensive UK. I went to a retirement party this week at a law firm where I was a partner until 1997. I had not seen some of the people there since before I left the UK in 1992, and almost none of them since I changed firms while abroad. So they were an interesting 'control group' for this question.

Most were initially surprised by my comments about changes in the UK during my absence. The changes had crept up on them over time and had not struck them so forcefully. When they thought about them however, they agreed they didn't like them much. They did not like 'political correctness' and felt particularly uncomfortable with its translation into law.

Someone recalled that twenty or so years ago, the firm's first-ever Muslim partner had asked an Orthodox Jewish job applicant how he would handle closing an urgent deal on a Friday with sunset approaching. The applicant did not get the job and complained - ludicrously - that this then predominantly Jewish firm was anti-semitic. The management had responded by issuing a grovelling apology and taking the Muslim partner off the recruitment panel.

No law was broken at the time. Indeed many of the Jewish partners asked similar questions when recruiting and were both surprised and disappointed by the firm's response. Today HR would have a fit if a partner asked such a question, just as they would if one asked a female applicant of child-bearing age how she intended to fit her career around any plans for a family. There would almost certainly be a claim under equality legislation.

The high proportion of Jewish and female partners in those long-ago days rather suggested there were acceptable answers to be given to these now-taboo questions. An Orthodox Jew might propose to involve a Gentile or less Orthodox colleague in his deal in order to cover for holy days. A female lawyer might say she had a house-husband or other family support, planned to hire a nanny or intended to give priority to child-rearing over competing for partnership. Or she might say she wasn't interested in having children so the issue didn't arise.

Now that the question cannot be asked, the temptation (though no-one would ever admit it) is to assume the worst-possible reply. This cannot be to the candidate's advantage. No-one believes a Jewish, Muslim or female lawyer is intrinsically inferior, so the only question is how to respect their different needs without compromising client service. That requires an honest and open discussion on both sides; now no longer permitted. It's a similar unintended outcome to that created by the Rehabilitation of Offenders Act. As offenders are legally-entitled to lie about their convictions (and employers are not allowed to check) HR departments everywhere bin any CV that has gaps that might represent time spent in prison.

Honesty really is the best policy. The best way to deal with concerns about race or sex prejudice is to give its 'victims' every chance to show - as I am absolutely certain is true - that it is not a useful guide to performance. I worked in jurisdictions with no such legal restrictions and honestly never asked myself any question about a candidate that did not go directly to the issue of better service to clients. Because that's what I cared about - and what was in the best interests of my business.

There was one person present at the party who strongly disagreed with my views. He denied there had been any chilling of free speech. He was entirely happy with the Equalities Act and with all changes in employment law. Nor had he any problem with the discriminatory concept of 'hate crime.' He felt just as free as ever he had and said I was making 'a ridiculous fuss'. It was a happy occasion so (I am gradually learning to fit in) I passed it off lightly.

When he had moved on, someone commented wryly that this scion of an illustrious legal dynasty (a leading City firm bears his family name) must mainly read his Guardian on the deck of his yacht. Apparently he now spends much of his time cruising the Aegean. It's odd that the Toynbee-ite rich have the most left-wing views, isn't it? But then in this paradoxical country of ours, nothing is as one would expect. The main health problem of our poor is obesity and the main problem of our rich is befuddled Marxism.

Engels and Marx - longtime expatriates in England - never predicted that.


Our dangerous zeitgeist

Here is a short quote from someone you have never heard of; Elise Groulx Diggs, co-chairman of the International Criminal Bar. The source for the quote is here, though I read it in the International Bar Association's dead tree magazine.

Law is an amazingly transformational tool and it doesn't take that many people to bring about change.

Whether or not you agree with the particular changes she's talking about doesn't really matter that much. Law is there to set limits to human vices, not to promote human virtues. This not least because humans are in closer agreement as to the former than the latter. Every law diminishes liberty and even a good one is a necessary evil. A bad one (and most are now bad ones) is just evil.

To put it another way, Law itself is a prison and the fewer people who ever see its bars, the better. That 'not that many' people can transform the lives of the rest of us by force of law is undoubtedly true. It happens all the time, but does not strike me as a thing to be happy about.

The lady has had a distinguished career and, from my brief research, has done a lot of good in this world. I am sure she is very admirable and I don't single her out because I think she is in any way to blame for our situation. It's just that her words sum up crisply, for me, the great mistake about the nature of Law that is making the Free World less so by the day.


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?

Dreamstime_l_17430269I 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.