Category Archives: Constitution

#OccupyLSX and Freemanry

Occupy London Stock Exchange have lost their appeal against the decision to turf them out of the churchyard of St. Paul’s.

I haven’t read the judgment in its entirety, but thought I’d pick up on one specific aspect.

At paragraphs 29-31:

  1. With the exception of Ms Samede, the defendants making the present applications are seeking to set aside all the orders made by Lindblom J, on the basis that they contend that the Judge ought not to have found for the City at all, but should have dismissed the claim and allowed the Camp to continue in place. It is convenient to deal first with one or two rather esoteric arguments raised by Mr Randle-Jolliffe.
  2. First, he challenged the judgment on the ground that it did not apply to him, as a ‘Magna Carta heir’. But that is a concept unknown to the law. He also says that his ‘Magna Carta rights’ would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case. Somewhat ironically, the other two chapters concern the rights of the Church and the City of London, and cannot help the defendants. Mr Randle-Jolliffe also invokes ‘constitutional and superior law issues’ which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.
  3. Another ground he raised was the contention that the City had no locus standi to bring the proceedings ‘as the current Mayoral position has been previously usurped by the Guilds and Aldermen in Contravention of the City of London’s 1215 Royal Charter’. We do not understand that point, not least because both the Lord Mayor and the Aldermen and Guilds (through the Commonalty and Citizens) are included in the claimants.

This is yet another case in which Freeman ideas have been decisively rejected by a court.  Another reasonably high-profile case is Doncaster MBC v Watson and Haigh [2011] EWHC B15 (Fam).  At the lower end of things, the courts are alive to their existence and prepared to take robust action to prevent it wasting their time.

The problem I have, and it may be because I’m feeling charitable, is that I genuinely don’t understand how, by their own logic, Freemanry is supposed to work.

Set aside the massive conceptual problems the idea has.  Let’s concede arguendo that the Freemen are right and that the institutions we call courts aren’t really courts but commercial operations, and that they do not recognise the supremacy of Magna Carta, “common law” and other superior forms of law.  Let’s also suggest for the moment that statutes really do require consent to be binding, and the “courts” are fundamentally wrong in suggesting otherwise.  Let’s assume all of that for the moment.

The problem I have in understanding this is that, even if this were all to be correct, I cannot see how it advances their goals one bit.  Freeman tactics and techniques are used, not in the support of principle, but as a straightforward practical tool.  It’s used to evade: being bound by injunctions; eviction; parking tickets; criminal prosecutions and debts.  These are primarily practical matters.  The Freeman ideas are not used on the strength of their moral philosophy or legal analysis, but because they offer you a quick fix.  In short, Freemanism is about providing something that works.

But it’s manifestly obvious that, even if the Freeman analysis of the law sketched above is correct, it is entirely ineffective in practice.  Even if you refuse to recognise the moral or legal authority of the courts, it cannot be denied that they have real, practical power.  Indeed, Freemen tend to refer to these institutions as “de facto courts”.  These courts do not recognise the validity of Freeman principles and arguments.  Any such argument advanced before them is going to fall entirely flat and be entirely unsuccessful.

Why, then, persist?  If your goal is to take a stand on a matter of principle, fair enough.  But this isn’t where Freeman arguments are deployed.  They are used like any other legal argument: to achieve a practical outcome in your favour.  Yet they stand zero chance of achieving that if we discount any nuisance effect it might have.  Freemen go to court to win, but even on their own analysis, the fora in which they use their arguments will not accept them, making loss inevitable.

I can’t be the only one thinking this.

UPDATE: Paul Randle-Joliffe, one of the litigants in this case, has got in touch to ask me to point out that the ideas sketched out, after the quote from the judgment, as a summary of Freeman legal analysis do not represent the submissions he made before the Court of Appeal.

Get Out of Jail Free?

Hooray! I’m back.

If you’ve been reading the legal blogs recently you will have witnessed a rare and beautiful thing: a broad group of lawyers being unanimous and unequivocal on what the law is.

I intend to add to that spectacle.

Comment is Free recently let some of the more disreputable parts of the #OccupyLSX crowd post on their site. Among them were a group that call themselves “freemen of the land”. Here are some of their articles:

Yes, Defaulting on Debts is an Option

Money has been Privatised by Stealth

Welfare, education and law at the Occupy Camp

Those first two articles’ titles might indicate that the authors have a certain estrangement from reality. Number three looks unobjectionable until you discover that it is written by a chap who goes around calling himself “commonly known as dom”. A bit Pythonesque (scroll through to 1:10).

Absurd titles aside, this group believes it’s discovered a series of amusing loopholes by which you can avoid the jurisdiction of the court and prevent people from chasing you for debts. This group runs sites like Get Out of Debt Free, that offer you meretricious pseudo-legal advice on how to do exactly that. A particular gem is the idea that if you capitalise your name, you forfeit all legal rights.

I’m not going to go into a detailed rebuttal, because they’ve been done elsewhere and I’d recommend you read them if you are interested.

UKHRB: Freemen of the Dangerous Nonsense

Carl Gardner: The law is not the enemy of protest but an essential tool of impartiality

Legal Bizzle (who has to endure these people for a living): Comment is free, but woo is sacred

All I will pick up on is how elementarily stupid the concept of exempting oneself from certain laws is. The Freemen appear to believe that statute law (or for that matter, a court) has no binding effect unless you consent to it. But let’s think about this. If you can opt out, so can anyone else. “Anyone else” includes debt collectors. So, if you opt out of the legal means for pursuit of a debt, the debt collectors can opt out of the sanctions against illegal means.

In other words, if I ran a debt collection agency I could opt out of the Offences Against the Person Act 1861, the Theft Act 1968, the Criminal Damage Act 1971 and the jurisdiction of the courts of England and Wales. I could also opt out of the Law of Property Act 1925 and the Land Registration Act 2002.

Having done that bit of groundwork, I could then send some thugs round to what is commonly known as your home (I’ve opted out of the law of property so I don’t recognise your legal title to it), break into it (I’ve opted out of the CDA so it’s not a crime), take all your stuff (I’ve opted out of theft and burglary being offences), smash other stuff, then rough you up for good measure (no assault/ABH/GBH for me, I’ve opted out of the OAPA!). If I were to be taken to court or arrested, I’d just stand up and say something in latin, refuse to capitalise my name and say I don’t consent to the jurisdiction. Get out of jail free, pass Go and collect all your stuff.

If, despite all that the court gets the odd idea into its head that it might be able to exercise jurisdiction over a British subject, I will at the very least have done excellent groundwork for pleading insanity.

There is absolutely no reason why, under Freeman’s logic, this scenario wouldn’t be equally possible. Legal rights, or lack thereof, work both ways.

The Supreme Court, Live

Sky News have put up a live streaming channel covering proceedings in the UK Supreme Court.

The usual restrictions on filming proceedings don’t apply, and the Court has several cameras installed. Sky is streaming these.

The site is rather impressive: a decent resolution streaming video with explanation of the court to one side, and the list below (with links to case details) so you can see what’s going on.

The link is here, do have a look if you have a spare moment.

“Don’t Know” to AV

I have absolutely no idea how I’m going to vote in the AV referendum. It’s not a straight PR-FPTP debate, so the usual arguments don’t apply. On the other hand I don’t quite understand what effect it would have on the electoral system, and thus the relative advantages and disadvantages.

The Yes and No campaigns have been lamentable. As far as I can tell they have spent most of their time talking to each other, usually whining about each side’s tactics. No2AV have been engaged in dirty tricks and some very bizarre scaremongering (apparently a Yes vote is also a vote in favour of abolishing maternity units). Similarly the Yes campaign makes a lot of criticisms of the existing system and FPTP, but does very little in the way of positively explaining why AV, as opposed to any other system, is the right solution other than a generall mumble about ‘fairness’.

In other words we have two uninspiring and negative campaigns generating more heat than light. I feel neither wiser nor better informed for all their bluster and campaigning.

Given the potential constitutional ramifications of this referendum, we deserve better. Merely abstaining isn’t really an option, tempting though it may be.

To that end I plan to open out my blog to discuss the issue in more detail. The aim is to have an honest discussion of the actual issues underlying the AV. No bluster, no tactical posturing, no dirty tricks.

I’m hoping to start with a podcast debate and take it from there, with (preferably) some guest posts. I’ve already got Mark Thompson, of Mark Reckons, for the first podcast, but I need more people for that and others.

If you’re interested and want to help out, please let me know.

SI Woes

Red TapeEarlier today the Law Commission, an independent non-partisan body that reviews our laws to look for potential reforms, published a consultation paper called Criminal Liability in Regulatory Contexts. Although this is a relatively dry title dealing principally with over-regulation of business, it is of wider public interest. It deals, in the specific context of regulation, with the problem of governments’ tendencies to over-legislate. In particular, it addresses the problem of too many criminal offences being on the statute books.

By way of an example, the commission looks at Halsbury’s Laws of England and Wales, a generally comprehensive book of all current law. It notes that in the 637-year period between 1351 and 1988, our criminal law filled a single 1382-page volume. From 1988 to 2008, however, the criminal law exploded to fill a further three volumes totalling 3,746 pages. This does not even cover the true scale of the expansion, as it deals only with England and Wales, and may not even contain all the offences currently in force. Factor in Scotland and Northern Ireland, and the extent of our legislative hyperactivity becomes even greater.

One might argue that this is nothing more than the necessary growth of government to meet the demands of a changing and more complex world. The evidence does not bear this out. People haven’t suddenly become more criminal, nor have they devised so many novel ways of being underhand that existing legislative frameworks proved insufficient. Nor is it a matter of government tending to regulation that they had previously neglected: this trend started under the Thatcher government.

The Law Commission finds the cause elsewhere, looking at the vast amount of secondary legislation passed every year. Secondary legislation is, broadly speaking, law not passed as an Act of Parliament. It is generally drafted by a Minister’s office and placed before Parliament, passing automatically if no objection is raised within a specified period. Over 3,000 pieces of secondary legislation pass annually, with over 60 national regulatory bodies, as well as local and trading standards authorities, having the power to create criminal law this way.

With the sheer volume of such legislation passed and cacophony of sources demanding and introducing it, the potential for proper Parliamentary scrutiny is limited. Parliament’s constitutional role is usurped. The laws with the ability to change lives dramatically, that should be passed with the most careful of debate and examination, are in effect being rubber-stamped. This is not an abstract concern. The “legal high” mephedrone was banned in just such a fashion, despite a lack of proper consultation with the Advisory Council on the Misuse of Drugs, and in the face of significant concern by the scientific community.  The government restricted the freedom of a citizen to engage in behaviour that affected nobody but himself, without the most basic of debates in Parliament, just to feed a frenzied media.

This is of concern. Government should not be able to in effect command legislation to sate a ravenous media.  Particularly problematic was Blair and Brown’s  wish to pass eye-catching legislation to be seen to be doing something.  These laws quickly fell by the wayside after the media lost interest and simply caused too much complexity and opportunities for abuse. It is legislating in a knee-jerk fashion in place of actually tackling the problems people want addressed. This is noticeable in the Commission’s report, which points out how many of these laws fall into rapid disuse, observing that the time and effort put into their creation could be better spent on actual governing.

The Law Commission says that this trend is undesirable in the regulatory context. Many of the actions criminalised would be better addressed as civil matters or via other regulatory mechanisms. Doing so would ease the costs and strain on our criminal justice system. The same logic ought to apply, by extension, to the criminal law in general. Let’s hope that the current government, which has made something of a promising start, will take heed.