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Thursday, 29 March 2012

Blunt Instrument ...

A friend, a Barrister of some repute, once told a class I was leading, that the "Law is an extremely blunt instrument" and should be used with caution. He was referring at the time to a then recent case, in which the judgement reached by the court, was likely to have a major impact in future on all cases falling under the legislation concerned. This is one of the major problems, in my view, with English Law, it doesn't necessarily mean exactly what it appears to mean - until a court has ruled that it does. Or that it means something subtly different. And that is where the problems start, because now the law impacts upon things those who drafted it, never considered or didn't intend.

In recent years we have seen a number of such rulings, usually made in the application of some recent piece of legislation. Frequently we have seen laws enacted by Parliament - certainly in the last 20 or so years - which are so poorly drafted and so badly thought through that the ultimate interpretation, and therefore the matters it affects, intended to address some 'issue' the denizens of that House deemed necessary, became a weapon against activities and people it was not originally intended to impact upon. Much of the Health and Safety Regulation introduced by the shovel load in the last 15 years has certainly had that impact on the Police, the Fire and Rescue Services, Ambulance Services and even the Voluntary sector. A great deal of the "anti-racist" legislation has had the effect of actually enshrining racism in some ways, with Whitehall "targets" for "ethnic and gender mix" in the workforce of public bodies, or the now frequent use of "race-hate" laws to ban groups or organisations from using public venues because some activist heard a member of the group use an idiom or phrase the activist considered "racist."

I see the problem has reared its head in the US as well, which uses a similar legal process in the interpretation of the law. A recent message from The Postulant provided me with a link to a Journalists Blog which took me to a very interesting article on a court case being brought against Congress for the passage of a law which, among many other things, would permit the deployment of the US Military within the borders of the USA itself for "counter insurgency operations, and the suppression of unrest." The reason this journalist and his fellow litigants are suing over it is that it would also permit the government to stifle the reporting of any action they wished to keep under wraps. Once again, I foresee that the application of this Act would be fraught with ramifications for everyone in the US, but in particular with their much vaunted freedom of expression, action and the right to bear arms.

The more I learned about the law, the legal process and the manner in which laws are created and framed, the more convinced I became that we needed less specific laws and fewer laws of compulsion on the Statute Book. Yes, we do need laws, every society needs to have clearly defined and understood boundaries of behaviour, what we do not need is a plethora of often overlapping, sometimes contradictory and seldom clearly understood legislation. My former profession, the Fire and Rescue Service, is affected by some 900 different pieces of law, a lot of it duplication, and some of it actually flat out contradictory. The Police have a similar problem.

Sadly, since the legal profession has a vested interest in making all law as opaque as possible, I doubt we'll see it reformed short of a major overthrow of the present syste, - and even that is only likely to make it even worse ...

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