Category Archives: Rule of Law

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

The Panama Papers and Material Law.

Panama Canal Construction Historic Photo - Culebra Cut 1898

This photograph taken in 1898[1]  shows the physically demanding excavation works, needed to cut the artificial valley through the continental divide in Panama.

The work was done by men under inhospitable tropical conditions, with daily temperatures ranging from about 24 °C to 32 °C.  The French company, encouraged by the success of the Suez Canal, raised funds from many individual investors to build the Panama Canal. It started the works in about 1881 but the tropical jungle climate, wet seasons, landslides and floods, difficult terrain, an environment quite unlike the calm flat surroundings of the Suez Canal,  lead to increasing costs. In 1889  the company became bankrupt. 22,000 workers were estimated to have been killed during the abortive construction, 800,000 investors lost their money and the ensuing scandal became known as the “Panama Affair”.

However, unlike now, in 19th Century the financial managers and those with important and high-ranking social positions were not protected by their social status or the law but were in fact held accountable and punished by the law for the social consequences of the financial disaster.

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Filed under Asset protection, Law, Market, Rule of Law, Social Justice, The Guardian, 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

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