Category Archives: Legal

Stuff about the law

The Fight against Censorship

TobyToby Young’s contribution to the the lockdown debate has been censored by YouTube. They say it offends their “guidelines”.

So here it is on another platform: Judge for yourselves.

As it happens, I agree with Toby Young, and indeed Lord Sumption (a great lawyer, who makes Baroness Hale look like an annoying feminist student), on this issue. But more to the point, legitimate commentary should not be consored. Not by YouTube. Not by Twitter. Not by the BBC or the ABC. Not by the State. Oh no. We are not Continue reading

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Sex, Violence and Property


Miley Cyrus on stage


Sex has become the cuckoo in the nest of the criminal law.

It used to be the case that the criminal law was principally concerned with two things: violence and property. Obviously enough, citizens want to live their lives feeling protected against the risks that they will hurt, or even killed, by others, or that they will have their property taken away from them by robbery, theft or fraud.

Sex has traditionally had a much smaller part to play. For sure, rape has long been a crime, but in large degree, rape has been seen as a subset of violence. Rape is not even contrary to the 10 Commandments.[1] Having sex with people of the same gender, with children or with animals has sometimes been prosecuted, and sometimes not. But, on the whole, both the police and the courts have concerned themselves much more with offences against the person and offences against property.

But now, sex is everywhere in the criminal law, in ways which would appear utterly bizarre to the majority of civilised people, in different places and in different times. It is not so much the actual act of having sex which has been criminalised, but rather a raft of activities peripherally connected with sex.

It used to be okay to prefer to hire Continue reading


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Supreme Court – All out!

SCUKThe decision by the government of Tony Blair to puff up the judicial committee of the House of Lords into the new Supreme Court a few years ago might well have been a mistake.

Views vary as to whether it should, the other day, have ventured onto new political ground.[1] What is not in serious dispute is that it has ventured onto that new political ground. The judgment of the court claims that there is nothing wrong with that. It includes this:

  1. Secondly, although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.

This last sentence may be doubted. Certainly, it is contrary to the views of the Lord Chief Justice and the other members of the Divisional Court as expressed in Miller, R (On the Application Of) v The Prime Minister Continue reading

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Before The Cock Crow, Thou Shalt Deny Me Thrice

SCThere are a lot of lawyer jokes. And sometimes I do feel a bit queasy about what my professional colleagues do. But I do not think I have ever felt ashamed of being a lawyer as I did when I read the judgment of the Supreme Court in Miller v Prime Minister.[1]

Three times[2], the President of the court, Lady Hale, denied that the case was political.[3]  Few will believe that denial. Clearly, the proceedings were brought for a political purpose, and the judgment against the government is clearly part of a determined reluctance by the British establishment to give effect to the democratic results of the Brexit referendum in 2016.

The Supreme Court was wrong on all three elements of its judgment: Continue reading


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Royal Assent, Anyone?

parliamentWe live in bizarre constitutional times. And tomorrow, Monday, 9 September 2019, is a particularly interesting day. Will the Surrender Bill[1] obtain the Royal assent?

This question gives rise to issues which do not normally arise. Normally, the government controls the business of Parliament, such that bills do not get Parliamentary time without government support. Normally, the government enjoys a majority in the Commons, such that bills without government support are not passed. Normally, Parliament does not pass bills that defy the result of a referendum and are contrary to the election pledges of both major parties.

But these are not normal times. It is not unusual for the opposition to try to disrupt the business of the government of the day. That is true of both the main political parties, but is perhaps especially true of Labour Party oppositions; many Labour Party politicians resent Conservative politicians to the point of hatred. And it is not unprecedented for there to be groups of people who owe their principal allegiance, not to their own country but to a foreign power. The Babington plotters and the Jacobites in the 16th and 17th centuries owed their principal allegiance to Rome as the hub of Roman Catholicism, and in the 20th century the British communists owed their principal allegiance to Moscow as the hub of communism. Just as the Remainers now apparently owe their principal allegiance to Brussels as the hub of the European dream.

What is unprecedented is the unholy alliance between those two.

It is not the function of Parliament to Continue reading

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Talking about a Post-Brexit World

2-Francis-Hoareresized-190x285It is now over a year since Francis Hoar’s careful analysis that the UK is not prohibited by European law from now negotiating trade deals with non-EU countries which will take effect in March ’19. But it is an analysis that is becoming more compelling now.

Jean-Claude Juncker has suggested that the UK cannot negotiate these trade deals during the 2 years period under Article 50 (Frans Timmermans is more realistic), but it seems clear that Juncker is wrong about this.

It is true that in the Blue Skies Case (Commission v United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, Germany), the Court of Justice of the European Union (CJEU) declared illegal an agreement entered into by various EU countries with the USA for co-operation in the area of aviation. But note the summary of that case Continue reading

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The Council Strikes Back!

As I have previously noted, I am not a regular petitioner. In fact, my petition on Freedom for Fleurieu Dogs is the first and only time I have initiated a petition on a matter of public interest, or indeed anything else. I am told by that 85% of petitions never even reach 50 supporters,  but since my petition was launched earlier this week, it has already found over 500 supporters. If you have not supported it, but would like to do so; please do so.

The response of the Chief Executive of Yankalilla District Council was initially to show interest in the petition[1], but this interest now appears to have somewhat waned[2].

But what has happened, since the launch of the petition, is that approximately 5:50 PM on Wednesday I was visited by an officer of the Council, who personally served on me an Expiation Notice[3] alleging that that Perdita was “wandering at large” on the beach on 5th January.


It is a surprising document, because it Continue reading

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A Rare Petition

575238_222880941184528_1973088916_nI am not big into petitions. But the recent By-Law designed to stop dogs running freely on local beaches really does get my goat.

So, if you can be troubled, and if you agree that dogs (including Perdita, of course) should be allowed to run freely on the beach, I really would be grateful if you would add your name.

You can read more and sign the petition here: Continue reading

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The Elite or The People?

brexit-mapThere is an irony in the fact that the decision handed down last month in Miller v Secretary of State [2016] EWHC 2768 (admin) was the week of Guy Fawkes’ Day night. There are parallels between the two events. I will come back to this parallel a little while.

The judgment, which ruled that the government does not have power to give notice of withdrawal from the European Union and Article 50 of the Treaty on European Union, is a remarkable document for all sorts of reasons. As with so many events in British history over the last millennium, it has much to do with the question of Britain’s independence from, or subservience to, Europe.

It should be said at the outset that the judgment will have come too many of us as a surprise. We have been Continue reading

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Mildly Droll: A Tale of Human Wrongs

ECHRThe Guardian has put up a skit in which, they say, “Patrick Stewart, Adrian Scarborough and Sarah Solemani expose the problems in the Conservative plan for a UK bill of rights.”

Well, no, actually.

The Guardian is the newspaper of choice for the Watermelons, and famous for its inability to spell. It is not famous for being funny. Except inasmuch as it is the butt of long-running jokes in Private Eye.

Human rights is one of those topics like UFOs, fairies and homoeopathy – it tends (with some noble exceptions) to be those people with the greatest interest in it that are the most misguided. It sounds good, of course.  But when it comes to the details, what one sees time and time again is that the protections of something like the European Convention on Human Rights are protections that are already present in a well-developed legal system like English law. And so, in the various “What has the ECHR done for us?” questions posed in the skit, it turns out that the answer is “Nothing useful at all”.  The gloss that it adds to the rights that were there all along is pretty much all bad news, harming the lives of citizens, not protecting them.

In short, the ECHR does a very poor job in areas where the English law had already done rather better. The skit is wrong on every Continue reading

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