Putting the dice in the box for another throw…

It’s difficult to know quite what is the more despicable aspect of the Appeal Court’s decision to overturn the High Court’s previous ruling in the case of protestor Brian Haw, the sheer sophistry of the the Government’s claim that Mr Haw’s presence outside Parliament constitutes a security risk, the facile argument put forward by the Metropolitan Police that:

The provisions in the 2005 act applying to demonstrations replaced parts of the Public Order Act 1986 for protests staged around parliament. If the 2005 act did not apply to demonstrations started before that act came into force those protests would not be covered for public order purposes at all.

the view put forward by the Master of the Rolls, Sir Anthony Clarke that:

Parliament intended to include demonstrations whenever they started. Any other conclusion would be wholly irrational and could fairly be described as manifestly absurd.

… or simply the sheer expense that the Government has gone to remove a single protestor from the precincts of Parliament Square.

I’ll ignore the Government’s contention that Mr Haw constitutes a ‘security risk’, treating it for what it really is – tendentious and beneath contempt, and skip lightly on to the Met’s argument in relation to the provisions of the 1986 Public Order Act that the Serious and Organised Crime and Policing Act (SOCAP) 2005 replaced.

Scanning the list of repeals  and revocations in the Act – which are contained in Schedule 17, by the way, we find that SOCAP 2005 repeals the following sections of the Public Order Act:

Section 3(6).
Section 4(3).
Section 4A(4).
Section 5(4) and (5).
Section 12(7).
Section 13(10).
Section 14(7).
Section 14B(4).
Section 14C(4).
Section 18(3).

Basically this amounts to two things – the removal of specfic provisions for arrest without warrant for affray, offences involving fear of the provocation of violence, offences involving harassment, alarm and distress and offence of using racially inflammatory words or behaviour or displaying racially inflammatory written material – which is everything referenced in sections 3 to 5 and section 18. These are all still criminal offences, in fact the only thing that these repeals do is pave the way for the consolidation of the powers of arrest conferred in these sections into the general power of arrest set out in section 24 of the Police and Criminal Evidence Act (PACE) 1984, as amended by section 110 of SOCAP 2005.

None of this is relevant to Mr Haw’s situation – if he commits any of the relevant offences then he can be arrested like anyone else.

This leaves the repeals applied to section 12(7), 13(10) and 14(7), 14B(4) and 14C(4), all of which relate to the regulation of public processions and public assemblies and which confer on a senior police officer the power to impose conditions on or prohibit processions and control public assemblies in order to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community or where it is believed that the purpose of those organising the procession/assembly is to intimidate others.

If memory serves me correctly, except in the case of the designated area around Parliament, which is what is at issue here, these powers have since transferred from the Police to Local Authorities as part of the licensing function.

Ignoring the bit about ‘serious public disorder, serious criminal damage or serious disruption to the life of the community’ – on the rare occasions that Mr Haw’s protest has been associated with any public disorder, it has been Mr Haw who has been the victim of unprovoked assaults – the Met’s contention that the previous ruling of tthe High Court leaves them without any cover for public order purposes in entirely false on three counts.

First, only Mr Haw is – under the High Court ruling – exempt from the provisions of SOCAP 2005. Anyone wishing to join in with his protest must still notify the Met as required by the Act.

Second, of the two acts that were previously covered under the Public Order Act, public processions and public assemblies, only the former would have been applicable to Mr Haw. The Public Order Act defined a public assembly as a gathering of two or more people and there is only one Mr Haw, so as long as her refrains from processing around Parliament Square, then neither of these provisions of the Public Order Act apply to him.

Finally, irrespective of the applicability of SOCAP 2005, the Police still retain their common law powers to control assemblies in the interests of preventing a breach of the peace and preserving public safety are empowered to take all reasonable steps to prevent a breach of the peace and to protect the safety of the public where they reasonably suspect that it is necessary to do so.

In short, the Met’s argument is near enough a total fabrication and a mischaracterisation of the actual legal position as it applies both the Mr Haw and to protests and assemblies in Parliament Square.

Moving on to Sir Anthony Clarke’s comments, I believe simply that he has got it wrong and hope fervantly that when this matter comes before the Law Lords, that they will take a similar view. In matters such as the retrospective application of law, it is not, I would contend, the place of a judge to overrule the position set out in statute law on the basis that this is not what the Government of the day intended – if a law is to applied retrospectively then it is for Parliament to make that determination and include provisions in legislation to that effect. If it fails to do so, then tough, it should go back and put through an amendment to that effect, not ask the court’s to bend the law in their favour and effectively cover-up their own mistakes. When laws are framed in such way as to leave certain matters open to judicial interpretation then Judges must interpret as they think appropriate in line with the principles of common law and their understanding of the intent of the legislature, but if written clearly they should not – even if the Government pops up in front of them claiming that its all be a dreadful error and its really not what they intended in the first place.

If judges start changing the law to reflect the ‘intent’ of the government where that intent is not only expressed in law but explicit in its absence then where does this kind of thing stop?

Can the government now apply to the courts to extend the police’s powers of detention from 28 to 90 days, because that’s what they intended even though its not what Parliament agreed to? Can the government simply ignore the provisions in the Identity Cards Act delaying the issuing of ID cards alongside passports until 2010 and them simply ask the courts to rule in their favour because that’s what they intended all along.

Ok, I’ve picked on two very extreme and highly improbable examples above, but the basic principle remains the same – if legislation is clear in its intent as written that that is how is should be interpreted by the courts, whether or not what the law says is actually what the government wanted. It’s up to the Government to draft laws properly, in concert with the legislature, and if fails to do that then not only should it not expect to be bailed out by the courts but one has to seriously question the competence of those who drew up this law in the first place.

Not only has Sir Anthony Clarke arrived at the wrong decision in this case, he’s done so for entirely the wrong reasons.

On the last point, the cost of this whole sorry exercise, can anyone possible justify the time and expense that the Government has gone to, in pursuing this case, in order to get rid of one harmless and somewhat eccentric protestor? If ever there was a matter that demanded the scrutiny of the Public Accounts Committee it is this one, so perhaps one of the Honourable Members might care to submit a written question enquiring as to just exactly how much public money has been pissed away by the government on this case – presumably the government’s record keeping when it comes to legal fees is rather better than its record keeping when it comes to foreign criminals and deportations, so it shouldn’t take too long to get an answer.

12 thoughts on “Putting the dice in the box for another throw…

  1. Pingback: Parliament Protest
  2. 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.

  3. 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?

  4. 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.

  5. 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.

  6. 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.

  7. 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”.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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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