Latest JUNE 7th 2011

APRIL 20th 2008
It appears that many commentators are confused as to the meaning of the term THE RULE OF LAW. This is not surprising, as the judiciary are evidently confused themselves, as are some politicians and many of those who have managed to get themselves accepted, by one means or another during their careers, as authorities on the subject.

Every civilisation has discovered that without the 'rule of law', individuals cannot be expected to abide by the obligations that conscious, self-conscious humans in an intended coherent society, enter into or are entered into by those who take responsibility on their behalf. The social contract, as Thomas Hobbes made clear centuries ago, is valid only if it is enforced by the sovereign power.

The question naturally arises: who makes the law? The answer is usually the sovereign power. This may be a tribal chief, a monarch, an assembly of elders, a parliament elected by some or all of the population. I say usually because over the millennia in which human civilisations evolved there were periods when the separation of law making and law enforcement ebbed and flowed. Notable in this context is the role of religion, the separation or integration of church and state, the independence or otherwise of the judiciary, and the precise loyalty and in the final analysis of the military, paramilitary and police.

It must also be understood that the law will have developed over many years, even though it may be crystallised and codified at particular moments in history (e.g France's Code Napoleon). If we take the example of King Solomon, he was the sovereign power and the head of the judiciary, the law was the commandments established in the time of Moses with whatever detailed customs and refinements that had been added.

In the UK in the present time, any additions or changes to the civil and criminal laws are made by Parliament. The interpretation and application of the law is made by a judiciary of judges and magistrates. The enforcement is delegated to local and/or national agencies with the power to investigate, interrogate, arrest and detain within the limits set out by the existing laws and following instructions and decisions of the judiciary. These include police, customs and a few special agencies. The Crown Prosecution Service is responsible for prosecuting criminal cases investigated by the police in England and Wales.The
SFO is the body which investigates and prosecutes serious and complex fraud.

Those readers who are familiar with western philosophy and Godel's Incompleteness Theorem will appreciate that at any given moment in a changing world the making, interpretation and application of the law cannot be a complete, all encompassing set of self-proving verities. The law is an operating system, it is not itself an authority. While it relieves those charged with its day-to-day administration from using their own judgement or even prejudices, it is not the law which rules. The sovereign power may overrule in any exceptional case where the applcation of the law is not in the public interest, or when it deems mercy is more appropriate than the punishment decreed by he law.

The reason for such exceptions is not a mystery.
Though we use the expression "The rule of law", the law does not rule. People rule, using the authority and the operating systems they are given. Quite apart from the philosophical extrapolation from Godel's mathematical theorem which would apply even to domestic law in a closed system, human society has international legal ramifications with undefined borders and international inconsistencies. The recent case of the Natwest Three is an example where arguments of symmetry were called on in an attempt to prevent the extradition of criminals from the UK for trial in the US, while legal argument obviated their triel in the UK. They failed, but they might have succeeded.

It can be argued forcefully that the national interest should not be furthered by laxity in enforcing domestic law, to the detriment of competing friendly nations that subscribe to common commitment to equity and fair trade. On the other hand we have the interesting case where the UK senior judiciary have decided they have the power to overrule the executive power of the SFO and the Government. In this their Lordships are sadly mistaken and in very great and grievous error. They may think they know better than the PM, SFO Director and Attorney General together weighing up the case, but it is not their job to decide for the executive what is right; nor can they know if any law, domestic or international has been broken at all.

A similar though different mistake is made by those who complain that the role of the Attorney General is unconstitutional because it gives rise to a 'conflict of interest'. It can indeed give rise to that one person having to give an opinion on matters where he or she alone is in a position fully to know and understand the arguments on either side in such a conflict. That is what the office is for, as it would be quite inappropriate to school and brief the judiciary in all the intelligence and aims of a government, or expect a government to be comprised of only judges with no political aims or responsibilities to the electorate. That is why cases of national interest the Attorney General is the chief legal adviser to the Prime Minister and the advice he will use to help decide on the action to take in the national interest.

MAY 21 2008
The difference of opinion between Charlie Falconer (former Lord Chancellor of some character) and the drafters of new constitutional reforms is worrying. Wires are seriously crossed here; of if not there is a significant difference of opinion on how to achieve sensible ends...

Falconer savages Brown's 'trivial' reform bill

· Ex-lord chancellor attacks 'constitutional retreat bill'
· Criticism hits centrepiece of Brown's legislative plan

This article appeared in the Guardian on Thursday May 22 2008 on p19 of the UK news section. It was last updated at 00:05 on May 22 2008.

Lord Falconer, the previous lord chancellor, yesterday launched a scathing attack on Gordon Brown's plans to reform the constitution, describing his reform bill as "trivial", "containing nothing of significance" and "sometimes designed to meet problems that do not exist".

He said the legislation was pointless, adding "it is better to describe it as the constitutional retreat bill, rather than a constitutional renewal bill".

"I believe there is next to nothing of significance of this bill. It is like filling in time," he said.

The wounding assessment of one of Brown's flagship pieces of legislation from a senior Blairite is likely to disturb the current lord chancellor, Jack Straw, and comes after Falconer's declaration of opposition to the extension of pre-charge detention to 42 days.

Lord Falconer was giving evidence yesterday to the joint committee scrutinising the draft constitutional renewal bill. Brown's commitment to constitutional reform was one of his first, and most radical, pledges on becoming prime minister, as he promised to strengthen the role of parliament and address some of the perceived abuses of the Blair era, including claims that the attorney general had acted politically in advising the cabinet that the invasion of Iraq was legal.

The bill covers civil service reform, judicial appointments, parliament's war making powers and the role of the attorney general.

Lord Falconer described the proposals on judicial reform, including the removal of the lord chancellor from the appointment of lower-level judiciary as "genuinely disturbing," arguing that it removed parliamentary accountability and left the lord chancellor "blowing in the wind".

All power would lie in the hands of the judiciary, he said, adding that it would be better to let reforms introduced in 2005 bed down "rather than blunder in with more legislation".

He described the proposed reforms to the office of the attorney general in the draft bill as "a missed opportunity" since they changed virtually nothing.

Offering more radical proposals than those contained in the draft bill, he said he favoured the attorney general no longer being drawn from a political party and no longer regularly attending cabinet or being a cabinet member.

He suggested that the attorney general might be appointed by the prime minister, but only after an independent process on merit and should be installed for a fixed term. "What started off as an optimistic proposal to reform the office of the attorney general has sunk into a number of slightly pointless provisions," Lord Falconer said.

He added it was "inconceivable" that the attorney general's advice on the use of force should remain secret. The attorney general's advice on public interest issues should be accountable to parliament so no political pressure can be seen to be applied on individual prosecutions.

Lord Falconer said the reform was necessary because of public perceptions and his knowledge of the atmosphere in which an attorney general has had to operate. "The idea that the general public do not think 'you are part of the gang' must have an impact on public perception," he said. He insisted that he held the current attorney general, Baroness Scotland, in high regard, but said if matters are left to rest as proposed in the draft bill, he doubted whether the attorney general view would carry sufficient public weight in future if asked to give a view on a questionable use of military force.

"The current arrangements are very severely wounded," he said.

He also attacked the draft bill's plans for a draft war powers resolution, saying it would add a dangerous layer of legality that is "unnecessary and problematic". He predicted it would lead to "people constantly going to court to judicially review the prime minister".

Asked to comment on the proposed reforms in the draft bill to the sweeping changes of judicial appointments passed only in 2005, Falconer said: "I can see no rationale behind any of those proposals. It is a complete rag bag of things that appears to have no point. It is either genuinely disturbing or pointless".

He singled out the decision to remove the lord chancellor from the appointment of judges below the high court, saying the lord chancellor would have been entirely removed last year from 430 selections.

MAY 29th 2008
There is now much discussion on whether decisions on major planning matters as the siting of nuclear power stations, major wind-farms, reservoirs and water-power facilities should be delegated to independent bodies of experts or remain the responsiblity of the democratically elected and responsible political executive. The answer is of course both. There must be a structured dialogue

The government should decide the national strategy and policy after taking expert advice and democratic soundings. The various options can be discussed openly (with only possible restrictions where national security of significance might render complete transparency inappropriate) and debated in Parliament and Select Committes as required. An expert body can then be given the task of deciding on the choices within the terms of reference that have been set out by the Government. A minister in Cabinet would then be responsible for accepting the recommendations of the expert body or, in exceptional circumstances, putting the matter up for further debate due to what might be considered new evidence or financial constraints.

What is certain is that the decisions must be arrived at in the national interest, without undue delay or endless legal challenges. As pointed out at the start of this file, the rule of law does not mean the rule by judges, but neither do we want rule by scientists. All decisions of this kind are in the end political. Parliament and the executive branch of government is the sovereign power, tasked with deciding which choice to make in the light of science and following legal constitutional procedures. We have quite enough lawyers in Parliament already, we could do wth a few more scientists but it seems they are busy elswhere. On the whole the government listens carefully to both, but there is perhaps a lack of polymaths to appreciate the big picture and that is why it took 25 years to get the signficance of climate change onto the agenda in the UK.

JUNE 9th 2008
In a case relevant to the discussion here, superbore Stewart Wheeler is trying to claim that as a matter of law the government has to put the ratification of the EU's Lisbon Treaty to a public referendum. If there was ever a matter of pure politics this is it. I am glad to see Jonathan Sumption has fastened on this fact as the basis of his argument to have Wheeler's case thrown out. There are plenty of other reasons why it should lose but why should we be even asked to go there?

JULY 14th 2008
The role of the law will be significant in deciding whether or not the lights stay on.

'Lights will go out' by 2015 if Lords rejects Planning Bill

By Nick Clark
The Independent - Monday, 14 July 2008

The lights will go out across the UK in seven years if the Planning Bill coming up for review this week is rejected in the House of Lords, according to a leading business trade body. It estimates the country needs £100bn of investment in major energy plants by 2020.

The CBI has urged the House of Lords to pass the Planning Bill, under consideration tomorrow, to help secure the nation's energy and infrastructure needs.

It also accused the Conservatives of playing politics in opposing the Bill, with potentially damaging ramifications for the UK's future.

John Cridland, deputy director general of the CBI, said: "To keep the lights on, heat our homes and meet climate change targets, approximately £100bn needs to be invested in major energy infrastructure projects by 2020."

To avoid the power outages that have dogged South Africa and California in the past few years, the UK needs dozens of individual infrastructure projects from gas and coal-fired plants to wind and nuclear. The CBI said that with current complicated planning, legislation was "not fit for purpose", adding the Government's Planning Bill was crucial to speed up the process of approving these projects.

"The current planning system has always struggled with such projects and there is no way the number of projects necessary would come through the current system in time. The reforms ... in the Planning Bill are essential if business is to commit to the necessary investment," Mr Cridland said.

The UK needs seven new gas and coal-fired stations, 12 new nuclear stations and 40 wind farms, as well as 12 major gas storage plants, according to the CBI.

The second reading of the Bill is in the Lords tomorrow, before it goes to committee. It should be voted on before the end of the year.

The Bill was first proposed in a White Paper in May last year and is based around the creation of an independent body to oversee the planning applications for major energy infrastructure projects. The CBI supports the move, pointing to major infrastructure planning permission, such as Sizewell B, taking five years. It hopes a streamlined process would take as little as nine months.

Currently, the final decision sits with ministers and politicians fear that by handing the power to an independent body they are stripping democratic accountability out of the planning process, and taking power away from local officials.

The CBI disagreed. It said the Independent Planning Commission, which would comprise up to 30 experts, would act in a similar way to the Monetary Policy Committee at the Bank of England, with the final decision taken by a body of experts rather than politicians.

MAY 20th 2011
Now we come to the point, a moment for which this file was opened 3 years ago, a moment inevitable since the day we were building the web in the 1990s. It concerns the paradox at the heart of democratic government that passes the responsibilty like an explosive parcel to those who either claim to be able to defuse it or to rightfully use it on behalf of society. Rather than launch into a lot of verbiage, and because I am extremely busy, I invite readers to read and listen to all the news about the debates on PRIVACY and INJUNCTIONS and PARLIAMENTARY PRIVILEGE and TWITTER and BLOGS, and contemplate how these matters reach out, and back, and sideways into the fabric of our mutual existence. I will write here in due course. For the moment all I will say is that today some judges have spoken very wisely and carefully, and some politicians very foolishly and carelessly. In view of all the preceding paragraphs my opinion may surprise you. I refer you to Spiderman. Or was it his Dad...?

MAY 21 2011
I think I will cut to the chase here. The issue is not so much about the freedom of speech or information, as it is about anonymous access to media with world-wide readership. It will be established in due course that any given country in which responsibility for law enforcement is established as relevant must abide by domestic and agreed international procedures in identifying those accused of libel or of breeching court orders that are mutually recognised between the countries concerned. The business of privacy and injunctions may vary, as they do now, from one country to another; but the anonymity of anyone ignoring the law such as a reporter under legitimate restraint of a court judgement to protect the innocent, even if the report is true, cannot be defended in affairs of democratic countries who work together in the modern world. It is not any current case that is the serious issue here, it is that it gives us the chance to prepare a proper defence against really serious abuse which we can expect, not from smart-arse reporters but from people who wish serious harm to any society attempting to emerge successfully into this new, very testing, millennium.

MAY 22nd 2011
Here is a very thoughtful article in the Sunday Herald, a Scottish paper that I am told has published the name of the footballer whose identity has been revealed on Twitter. I have to say I have no idea who this footballer is, nor do I need to know, and I very much doubt I will ever Twit or read anything on Twitter. But the article is worth reading.

JUNE 7th 2011
Time now to move the argument on. Twitter is now the classic case on which we can proceed. Are all those who re-Twit a (currently) actionable tweet to be liable? If prosecution becomes 'futile', do only primary Twits take the heat? Or does the apparent futility mean the abandonment of privacy and hence due to Twitterability the end of libel law. The answer to the last is no, so we have to work backwards to see where the line has to be held.
I actually have confidence in the legal brains that will be brought to bear, so I am not going to lay down the law here - they will reach it by the proper process. Parliament may be called on to make some legislative adjustments on the considered advice of the judiciary.  The current Attorney General is no fool.
There are those who think the law cannot deal with the new media. That may be true for a while.


Skipping forward over a year, it is again being made clear that in parts of the Muslim world, traditions and customs can conflict with the appication of the rule of law. The law of hospitality appears once again to override the consideration of the sheltering of criminals as a crime. This was the reason the sheltering of al Qaida by the Taliban leaders in Afghanistan brought the weight of an enraged US on their heads. Today, in Lybia, the new provisional government is being delayed by the hospitality (ha ha) being offered to Gaddafi's sons in Bani Walid, a city of some 50,000 inhabitants 150km (95 miles) south-east of Tripoli. Col Gaddafi is reputed to have a lots of support there, though the city is mixed in its make-up. It is a stronghold for the Warfalla tribe. In his defiant audio message on 1 September, the fugitive leader referred to it as "an armed fortress".

The enforcement of the 'law of hospitality' is of course just a form of terrorism, like any mafia boss uses. As soon as they can get rid of the key Gaddafi loyalists the inhabitants will accept the new interim government.