The ‘Problem’ of ‘Inconvenient’ Laws

“Prime Minister we appear to have a problem –  an agency of ours appears to have broken the law.” “Easy, Minister of Justice. Just change the law – but best not tell anyone, don’t you think?”

Two claimed quotes (unreliably) ascribed to Adolf Hitler might nevertheless apply to present government approach to law making and objectives:

“The best way to take control over a people and control them utterly is to take a little of their freedom at a time, to erode rights by a thousand tiny and almost imperceptible reductions. In this way, the people will not see those rights and freedoms being removed until past the point at which these changes cannot be reversed.” (1)

“Propaganda must not investigate the truth objectively and, in so far as it is favourable to the other side, present it according to the theoretical rules of justice; yet it must present only that aspect of the truth which is favourable to its own side. (…) The receptive powers of the masses are very restricted, and their understanding is feeble. On the other hand, they quickly forget. Such being the case, all effective propaganda must be confined to a few bare essentials and those must be expressed as far as possible in stereotyped formulas. These slogans should be persistently repeated until the very last individual has come to grasp the idea that has been put forward. (…) Every change that is made in the subject of a propagandist message must always emphasize the same conclusion. The leading slogan must of course be illustrated in many ways and from several angles, but in the end one must always return to the assertion of the same formula.” (2)

The situation is well summarised in an article by Alexander J Martin in 'The Register' on 15th May, 2015.

"Government legislation to exempt GCHQ from prosecution on charges of illegal hacking has been passed and come into effect – apparently torpedoing an ongoing claim against the surveillance agency being heard by the Investigatory Powers Tribunal. Last July, a coalition of internet service providers and international organisations teamed up with Privacy International to take legal action against GCHQ.  Their claim, which has arrived in court today, has been hobbled by what they say is the revelation that the Government had quietly ushered through legislation amending the Computer Misuse Act to exempt GCHQ and law enforcement from prosecution, and did so whilst the case was ongoing.

Privacy International says it was notified of this change only yesterday. The campaigners complain that as the legislative change occurred during the process of their action under that very legislation, proper consideration of the court’s time meant that they should have been informed. The amendment to the Computer Misuse Act was written into law on March 3 of this year, after being introduced on June 6 of last. Privacy International complain that its opaque language and the extraordinarily limited range of stakeholders which were consulted allowed the legislation to slip under the radar."

"The explanatory notes that accompanied the act make no reference to the true impact of the change. It appears no NGOs, Regulators, RIPA Commissioners, the Information Commissioners Office, Industry, or the public were notified or consulted about the proposed legislative changes. There was no published Privacy Impact Assessment. Only the Ministry of Justice, Crown Prosecution Service, Scotland Office, Northern Ireland Office, GCHQ, Police and National Crime Agency were consulted as stakeholders. There was no public debate.” (3)

In Britain we are told we are governed ‘according to law’, and that the ‘rule of law’ is supreme, succinctly summarised by Dr Thomas Fuller in 1733 in his statement, “Be you never so high, the law is above you.”   

"These words were quoted by Lord Denning, probably the most celebrated English judge of the 20th century, in a case brought by John Gouriet in 1977 when the Attorney-General refused to give him consent to institute special legal proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953.

"When the Attorney-General argued that his discretion was absolute and not subject to judicial review, Lord Denning pointedly had this to say:

“…What is to be done about it? Are the courts to stand idly by? Is the Attorney-General to be the final arbiter whether the law should be enforced or not? ”

"It is a matter of great constitutional principle. If the Attorney-General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced. Denning continued;

“…This is an essential safeguard; for were it not so, the Attorney-General could, by his veto, saying ‘I do not consent’, make the criminal law of no effect. Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity. It would indeed be above the law. This cannot be permitted. “To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you never so high, the law is above you’…” (4)

Denning could not have stated the principle more clearly. If Government Law Officers attempt to block or subvert private criminal prosecutions by the citizen, they are limited by the prevailing statutory or common law. In the light of recent decisions not to prosecute even where the DPP has decided there is a clear case, it may require testing yet again.

However to be considered valid, it is important that the law is created only by due process in an open and constitutional manner and that it does not impinge on or negate long-standing or fundamental principles. Nor should law be created by statute by some secretive process or feint of hand. This is why the preceding process of open consultation, and the many stages legislation must pass through is so important. It may be considered inconvenient by government but it is absolutely fundamental to the credibility of the law, the rights of the citizen and ultimately the moral foundations of the state. It is summarised in the following quote:

"Perhaps the most important application of the rule of law is the principle that government authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps. The principle of the rule of law is intended to be a safeguard against arbitrary governance. The law must be accessible, intelligible, clear and predictable and must apply equally to all. It must also afford adequate protection of fundamental human rights. It is the independent and impartial holder of the Office of Constable who is tasked with upholding and enforcing the law.” (5)

What we have seen over perhaps the last two decades, implemented by both leading political parties, is a whittling away of fundamental freedoms and protections by a thousand tiny cuts, in much the way our friend Adolf envisaged. It has seen its denouement in the current stated intention to withdraw from the European Convention on Human Rights (ECHR) that Britain itself was instrumental in setting up in 1950. If at all possible the proposal has been topped by Prime Minister Cameron’s extraordinary intention to run a coach and horses through the principle of the ‘Rule of Law’ insofar as he has stated his government will treat those that question official versions of events as “terrorists”, with all the implications that includes, and will expect the police to intervene even where the law has not been broken. If ever there was a recipe for tyranny this is it. The actual reported statements are worth reproducing yet again if only to impress on everyone the seriousness of the situation we find ourselves in. The fact that he did not loose the election on these alone shows just how far down ‘Adolf’s Road’ we have come.

“The peddling of lies: that 9/11 was a Jewish plot or that the 7/7 London attacks were staged. The idea that Muslims are persecuted all over the world as a deliberate act of Western policy. The concept of an inevitable clash of civilisations. We must be clear: to defeat the ideology of extremism we need to deal with all forms of extremism – not just violent extremism.”

“For governments, there are some obvious ways we can do this. We must ban preachers of hate from coming to our countries. We must proscribe organisations that incite terrorism against people at home and abroad. We must work together to take down illegal online material like the recent videos of ISIL murdering hostages. And we must stop the so called non-violent extremists from inciting hatred and intolerance in our schools, our universities and yes, even our prisons.”  (6)

And more recently,

“For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone. It’s often meant we have stood neutral between different values. And that’s helped foster a narrative of extremism and grievance. This government will conclusively turn the page on this failed approach. As the party of one nation, we will govern as one nation and bring our country together. That means actively promoting certain values. Freedom of speech. Freedom of worship. Democracy. The rule of law. Equal rights regardless of race, gender or sexuality. We must say to our citizens: this is what defines us as a society.” (7)

Notice how he uses the ‘Rule of Law’ and other enshrined constitutional principles to actually subvert it and them? We cannot allow him to pull off this trick yet again or we shall find ourselves where the German people did eighty years ago.

Following the 7/7 bombings in London in 2005, the British shaped an EU data retention directive, adopted the following year, allowing the capture and storage of electronic communications. But last April the European Court of Justice struck down the directive as in breach of the EU’s charter of fundamental rights. How far the newly established British Supreme Court is able to do the same, namely to strike down legislation on the grounds that it was enacted unconstitutionally has never been properly tested. The principle is that Parliament is supreme and may enact or repeal what it likes. However there is also a line of thought that there are limits to that power imposed by the Constitution itself,  such as, in this anniversary year, the Magna Carta and Bill of Rights beside others established principles at Common Law or by international treaty such as the EC law or the HCHR.

This Government quote tries to clarify the existing position: 

“It is right to suggest that judges are able to rule that the acts of public bodies are unlawful and to decide against the Government in a particular case. Indeed, this is a powerful check on the power of the State against the individual. Many of the examples seen in the media, or commented on by politicians, tend to focus on criminal matters or on Human Rights, but there are many other examples of judicial oversight enabling the State to redress unforeseen outcomes of its own legislation. It is however wrong to suggest that the judiciary can, using the Human Rights Act 1998, overturn legislation. That Act only permits the High Court, the Court of Appeal or the House of Lords/Supreme Court to declare legislation to be incompatible with the Convention rights. A declaration of incompatibility does not strike down legislation or remove it from the statute book, as is the case in some jurisdictions. In the United States, for example, the Supreme Court can declare that legislation is not valid law because it is unconstitutional. Declarations of incompatibility under the 1998 Act, however, leave the validity of the particular law intact. They simply require Parliament to consider amending the law to render it compatible with the provisions of the European Convention on Human Rights. The ultimate decision remains with Parliament and not the judiciary. Ultimately, the judiciary does no more, or less, under the 1998 Act than carry out its constitutional function of interpreting and applying the law enacted by Parliament. They only have such power as Parliament gave them in the Human Rights Act 1998.” (8)

Perhaps in this context, legislation passed without proper advertisement or consultation to retrospectively protect the government from criminal prosecution might come within that category? For this to happen someone competent will need to institute an application for Judicial Review. In the meantime, the public needs to be made aware if they are to make it clear to our law makers 'up with this we will not put'! END.

(1) http://en.wikiquote.org/wiki/Talk:Adolf_Hitler#.22The_best_way_to_take_control_over_a_people….22

(2) https://books.google.co.uk/books?id=YMQjDiHYggcC&pg=PA196&lpg=PA196&dq=Propaganda+must+not+investigate+the+truth+objectively&source=bl&ots=ZaEyIKwiP4&sig=1Mx88LgcqbjfXqnD63NjKyQAPS0&hl=en&sa=X&ei=6U9XVeu4H66M7AaC1oPwCQ&ved=0CDIQ6AEwAg#v=onepage&q=Propaganda%20must%20not%20investigate%20the%20truth%20objectively&f=false

(3) http://www.theregister.co.uk/2015/05/15/case_against_gchq_scrambled_by_under_the_radar_legislation/

(4) This is taken from http://rowans-blog.blogspot.co.uk/2013/06/why-cameron-is-completely-impotent-when.html

(5) https://www.metfed.org.uk/support/uploads/1214552596Office%20Constable.pdf

(6) https://www.gov.uk/government/speeches/pm-speech-at-the-un-general-assembly-2014

(7) http://www.independent.co.uk/news/uk/politics/britain-is-too-tolerant-and-should-interfere-more-in-peoples-lives-says-david-cameron-10246517.html

(8) https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/judges-and-parliament/