Comments on: Putting the dice in the box for another throw… http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/ Please allow me to Introduce myself, I\'m a man of wealth and taste... Tue, 05 Jun 2007 14:23:12 +0000 http://wordpress.org/?v=2.1.2 By: Parliament Protest http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1047 Parliament Protest Tue, 09 May 2006 15:45:55 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1047 <strong>SOCPA appeal verdict against Brian Haw ...</strong> Unity has published, an interesting analysis : Putting the dice in the box for another throw… which dissects the Labour Government and Metropolitan Police bureaucracy's Appeal against the long term peace protestor in parliament Square, Brian Haw and... SOCPA appeal verdict against Brian Haw …

Unity has published, an interesting analysis : Putting the dice in the box for another throw… which dissects the Labour Government and Metropolitan Police bureaucracy’s Appeal against the long term peace protestor in parliament Square, Brian Haw and…

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1048 Marcin Tustin Tue, 09 May 2006 20:57:03 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1048 I have to say that I disagree: Although I would suggest that this decision is unfortunate, it is not necessarily wrong in law, given that purposive construction is well established, even in the criminal sphere, and the extremely low, and seemingly unpredictable, bar to meet for "absurdity" to be found in a literal construction. More than anything it shows up the difficulties with the current treatment of absurdity by the courts, including the House of Lords. I fear that the Lords will concur with this. I have to say that I disagree: Although I would suggest that this decision is unfortunate, it is not necessarily wrong in law, given that purposive construction is well established, even in the criminal sphere, and the extremely low, and seemingly unpredictable, bar to meet for “absurdity” to be found in a literal construction.

More than anything it shows up the difficulties with the current treatment of absurdity by the courts, including the House of Lords. I fear that the Lords will concur with this.

]]> By: Niels Rakhorst http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1051 Niels Rakhorst Wed, 10 May 2006 11:48:04 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1051 AS far as I know, the legislation allows no way in which MR Haw <i>could</i> obey it, since there is no way to ask authorisation in advance if the demonstration is already ongoing. That makes any prosecution an exercise in bad law, surely? AS far as I know, the legislation allows no way in which MR Haw could obey it, since there is no way to ask authorisation in advance if the demonstration is already ongoing.

That makes any prosecution an exercise in bad law, surely?

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1054 Marcin Tustin Wed, 10 May 2006 20:02:45 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1054 Not really - Mr. Haw could just pack his bags, go home, and accept that free speech no longer exists, and that security does not exist in Iraq. To believe that allowing someone already carrying on a protest to continue is apparently "absurd", according to the Master of the Rolls, and the two other judges who sat with him. Not really - Mr. Haw could just pack his bags, go home, and accept that free speech no longer exists, and that security does not exist in Iraq.

To believe that allowing someone already carrying on a protest to continue is apparently “absurd”, according to the Master of the Rolls, and the two other judges who sat with him.

]]> By: Niels Rakhorst http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1060 Niels Rakhorst Thu, 11 May 2006 13:33:52 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1060 Sorry, I've lost the point of your argument now, Marcin. I can accept that even (or perhaps especially) legalese allows for absurd scenarios when interpreted literally. Any leeway judges have to interpret law is as much to allow justice to be applied strictly as it mercifully. Purposive construction is fine, but it must start from the purpose of the system as a whole, not a single law. If we can agree that a basic principle of the British legal system is to avoid creating criminals unnecessarily, I don't see how you can argue this ruling is 'not necessaily wrong in law'. The Government has made no case that the removal of Brian Haw, specifically, is in the best interest of the country. To class him as a threat five years into his demonstration would be silly. As such, there is no merit in bending the law as written in the favour of the stronger party in this. Sorry, I’ve lost the point of your argument now, Marcin.

I can accept that even (or perhaps especially) legalese allows for absurd scenarios when interpreted literally. Any leeway judges have to interpret law is as much to allow justice to be applied strictly as it mercifully.

Purposive construction is fine, but it must start from the purpose of the system as a whole, not a single law.

If we can agree that a basic principle of the British legal system is to avoid creating criminals unnecessarily, I don’t see how you can argue this ruling is ‘not necessaily wrong in law’.
The Government has made no case that the removal of Brian Haw, specifically, is in the best interest of the country. To class him as a threat five years into his demonstration would be silly.
As such, there is no merit in bending the law as written in the favour of the stronger party in this.

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1061 Marcin Tustin Thu, 11 May 2006 16:11:17 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1061 Well, just because there is no social merit in something does not make it wrong in law. I happen to think that purposive construction and the uncontrolled use of the term "absurdity" is not really working well in our legal system at the moment, and purposive construction needs to be given a thorough going over by academics and hopefully the judiciary, but that's another matter. Well, just because there is no social merit in something does not make it wrong in law.

I happen to think that purposive construction and the uncontrolled use of the term “absurdity” is not really working well in our legal system at the moment, and purposive construction needs to be given a thorough going over by academics and hopefully the judiciary, but that’s another matter.

]]> By: Niels Rakhorst http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1062 Niels Rakhorst Thu, 11 May 2006 17:54:06 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1062 Well, call me an idealist, then. I always thought that the point of law <i>was</i> to regulate a population based on social merit. Actually, make that "naive". Well, call me an idealist, then. I always thought that the point of law was to regulate a population based on social merit. Actually, make that “naive”.

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1063 Marcin Tustin Thu, 11 May 2006 23:00:02 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1063 You are naive - there is a difference between "is" and "ought". Of course the law ought to be good (whatever your definition of good is), but it need not be. That is a consequence of the legislation by a Labour-controlled Parliament. In my humble opinion, the current approach to purposive interpretation also requires some examination, because it can exacerbate these problems, by serving the actual intention of the majority who pass legislation, or the sponsor, even without recourse to Hansard. Clearly there are arguments both ways as to whether that is a desirable thing. You are naive - there is a difference between “is” and “ought”. Of course the law ought to be good (whatever your definition of good is), but it need not be. That is a consequence of the legislation by a Labour-controlled Parliament. In my humble opinion, the current approach to purposive interpretation also requires some examination, because it can exacerbate these problems, by serving the actual intention of the majority who pass legislation, or the sponsor, even without recourse to Hansard. Clearly there are arguments both ways as to whether that is a desirable thing.

]]> By: Niels Rakhorst http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1069 Niels Rakhorst Fri, 12 May 2006 13:42:36 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1069 Nah, still not sold. While I can accept that purposive interpretation and the concept and use of "absurdity" need re-examining, I don't see how you can do that usefully without reference to the goals and ideals of the system that forms the context. Yes, these ideals are subjective, and possibly even impractical, but so are the problems you have focussed on. Sensible, practical interpretative processes can mitigate any number of poorly drafted/conceived laws, but it does not keep them off the books. It feels to me like a short term solution, since even a law that is never applied can be used to distort and undermine core principles, or at least the perception and understanding of the principles 'we' are trying to codify. Ugh, I don't think I'm being very clear. I guess it sounds to me like you're building the oven without knowing what you're expected to bake. If you make it complicated enough it'll handle anything you throw at it, while it seems more productive to me to just find out what it is needed for. Thanks anyway, Marcin. Nah, still not sold. While I can accept that purposive interpretation and the concept and use of “absurdity” need re-examining, I don’t see how you can do that usefully without reference to the goals and ideals of the system that forms the context. Yes, these ideals are subjective, and possibly even impractical, but so are the problems you have focussed on.

Sensible, practical interpretative processes can mitigate any number of poorly drafted/conceived laws, but it does not keep them off the books. It feels to me like a short term solution, since even a law that is never applied can be used to distort and undermine core principles, or at least the perception and understanding of the principles ‘we’ are trying to codify.

Ugh, I don’t think I’m being very clear. I guess it sounds to me like you’re building the oven without knowing what you’re expected to bake. If you make it complicated enough it’ll handle anything you throw at it, while it seems more productive to me to just find out what it is needed for.

Thanks anyway, Marcin.

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1072 Marcin Tustin Sat, 13 May 2006 00:11:52 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1072 I don't think that you are understanding that there are two separate issues here: what is a law that is good (in the sense of desirable), and what is good law (in the sense that it is a correct application of the law). Thus, it is both possible for the outcome of the Haw case to be a correct legal outcome while being deplorable. In the search for reform there are two threads: The approach of the courts to statutory interpretation, and a change in statutory law by parliament. I don’t think that you are understanding that there are two separate issues here: what is a law that is good (in the sense of desirable), and what is good law (in the sense that it is a correct application of the law). Thus, it is both possible for the outcome of the Haw case to be a correct legal outcome while being deplorable.

In the search for reform there are two threads: The approach of the courts to statutory interpretation, and a change in statutory law by parliament.

]]> By: Niels Rakhorst http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1078 Niels Rakhorst Mon, 15 May 2006 15:23:15 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1078 I understand the distinction, but you're right, I have been muddling them up, or rather, I've misunderstood the powers of the courts. It's the parliamentary process that is supposed to create laws for the common good, while the courts are responsible only for ensuring good law is practiced, based on those laws. Without a relevant declaration of intent, along the lines of Human Rights legislation or a Constitution, or what have you, there are no ideals that the courts can apply to the process of rationalising and integrating the various laws passed down through parliament. Because "desireable" law is undefined, we can only have "correct" law. Something like that? Christ, but I feel dumb now. I understand the distinction, but you’re right, I have been muddling them up, or rather, I’ve misunderstood the powers of the courts. It’s the parliamentary process that is supposed to create laws for the common good, while the courts are responsible only for ensuring good law is practiced, based on those laws.

Without a relevant declaration of intent, along the lines of Human Rights legislation or a Constitution, or what have you, there are no ideals that the courts can apply to the process of rationalising and integrating the various laws passed down through parliament. Because “desireable” law is undefined, we can only have “correct” law.

Something like that? Christ, but I feel dumb now.

]]> By: Marcin Tustin http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1083 Marcin Tustin Fri, 19 May 2006 10:26:02 +0000 http://www.ministryoftruth.org.uk/2006/05/09/putting-the-dice-in-the-box-for-another-throw/#comment-1083 Basically, yes. Of course, because judges aren't automata, they did in any case have certain ideals that they applied, and some became relatively accepted, and some not. Of course, even with the Human Rights Act, or similar declarations, if they are not sufficiently precise, they can be circumvented. For example, in the Haw case, the Master of the Rolls did not advert to the argument that his interpretation represented a retroactive law, and quite apart from there being authority from before the HRA that legislation ought not to be interpreted as retrospective if possible, the HRA also mandates that no criminal law be retroactive. However, even if we accept that the thing is retroactive, even then there is no human rights violation if Haw is not convicted, at least without being given ample time to leave. The kinds of changes in the law that we would expect from Parliament and the courts are different, however: We want Parliament to not pass SOCPA and to pass the HRA; we want the judiciary to only apply purposive interpretation in a very limited and controlled manner, in order to avoid decisions such as that in Haw. So, in summary, we rely on Parliament to make the law good, but even then a determined judiciary can subvert that; conversely, the courts can apply bad laws in ways that ameliorate them. If they both travel in the same direction, then according to the law we are their mercy. Basically, yes. Of course, because judges aren’t automata, they did in any case have certain ideals that they applied, and some became relatively accepted, and some not. Of course, even with the Human Rights Act, or similar declarations, if they are not sufficiently precise, they can be circumvented. For example, in the Haw case, the Master of the Rolls did not advert to the argument that his interpretation represented a retroactive law, and quite apart from there being authority from before the HRA that legislation ought not to be interpreted as retrospective if possible, the HRA also mandates that no criminal law be retroactive. However, even if we accept that the thing is retroactive, even then there is no human rights violation if Haw is not convicted, at least without being given ample time to leave.

The kinds of changes in the law that we would expect from Parliament and the courts are different, however: We want Parliament to not pass SOCPA and to pass the HRA; we want the judiciary to only apply purposive interpretation in a very limited and controlled manner, in order to avoid decisions such as that in Haw.

So, in summary, we rely on Parliament to make the law good, but even then a determined judiciary can subvert that; conversely, the courts can apply bad laws in ways that ameliorate them. If they both travel in the same direction, then according to the law we are their mercy.

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