Category Archives: Democracy

Modern Statutory Interpretation

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A Note From the SLS 2016 Conference at Oxford.

Every student of law will know about the ‘sources of law’: statues, judicial reasoning, European legislation and cases.  They will be familiar with the cannons of statutory interpretation, the so called Literal, Golden and Mischief rules, purposive and contextual interpretation.   

All students  will have studied how under our constitutional settlement, the  judges interpret and apply statutes such as to articulate the will of the democratically legitimated Parliament,  (the supreme law making body), how the judges attempt to discern the will of Parliament reconciling  that with their judicial obligation to serve justice and the principles of legality.

It is apparent that modern law-making in common law jurisdictions comes from a constant recurring argument and debate between Parliament, the judges and legal academics.  In this spirit of a debate the conference offered a distinguished panel vividly embodying the dynamic of the ‘law making’ conversation. On the panel chaired by Lady Justice Arden the speakers were Lord Justice Sales, Professor John Bell from Cambridge and Daniel Greenberg a former Parliamentary Counsel.

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Filed under Carl Schmitt, Contextual Interpretation, Democracy, Giorgio Agamben State of Exception, Hansard, Legal interpretation, Parliamentary sovereignty, Pepper v Hart, Rule of Law, Society of Legal Scholars, Statutory interpretation, Uncategorized

Human rights, the law, common sense and the question of freedom.

imagesOn Friday 3rd October the Conservatives published a paper ironically but presumably unintentionally, entitled ‘Protecting Human Rights in the UK’ [1]. The aim of the proposal set out in the paper is to restore “common sense” and to “put Britain first” in relation to the legal protection of human rights.

As we shall see, the somewhat ill thought out proposal, seemingly largely driven by fear of increasing popularity of the UKIP party, seeks to restore the UK Parliament to full vigour, protecting our UK laws and UK constitution from interference by the Strasbourg Court and dastardly European human rights law.

In the paper the Conservative Party sets out its plans for the next Parliament for human rights law in UK. They propose:-

  1. to repeal the Human Rights Act 1998[2],
  2. incorporate the European Convention on Human Rights into primary legislation, and
  3. to pass a new British Bill of Rights to set out a “proper balance between rights and responsibilities”.

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Filed under Democracy, European Convention on Human Rights, European Court of Human Rights, Ghaidan v Gobin-Mendoza, Human Rights Act 1989, Law, Northampton, Parliamentary sovereignty, Protecting Human Rights in UK, Rule of Law, Uncategorized, Vinter and Others v United Kingdom

On Blogs and Totalitarianism

Hyperspace_exitNot long ago I started this blog but with considerable trepidation. I wondered what I could write about and whether anything I write about would be of any possible interest to the general but random reader in hyperspace and worried about the time involved. However, rather to my surprise it has been an exciting experience.  In this post I will try to reflect on the experience, describe my first ever post and try to develop some fresh connections between notions of legal positivism, democracy, ideology and economic totalitarianism.

The inspiration for my first ever post came from reading Ana França’s article published in the New Statesman on 27 June 2013.[1]  She described the way that the democratically elected government in Hungary used its overwhelming majority in parliament to amend existing constitutional protection for basic rights and freedoms, such as for instance freedom of expression, quite against the interests of the citizens and ultimately the long-term national interest. Continue reading

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Filed under Democracy, Law, Uncategorized

Democracy and rule of law: The Hungarian goulash.

parliamentIn middle of Budapest, on the bank of the Danube facing Buda, stands Hungary’s Parliament.

It is a spectacular building, a stunning  political ‘cathedral’ of a building designed to honour the gods of democracy and late 19th Century Mittel-European culture and identity rising from the ashes of crumbling empires.

The presently rather strained and difficult relations Hungary is experiencing with the European Union (‘EU) follow significant constitutional changes introduced over the last two to three years which appear to effectively abolish the rule of law and democracy in Hungary. The episode also helps to illustrate the inherent weakness but also the strength of the dialectic in the idea of Europe, refreshing our appreciation of the ideas of rule of law, democracy and brute power politics. Continue reading

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Filed under Charter of Fundamental Rights, Democracy, European Parliament, Free Speech, Judicial independence, Law, Rule of Law, Uncategorized