‘Ad valorem’ is a new feature on ‘Legal Aware’, to act as a fulcrum of challenging intellectual debate, resulting from recent legal and social blogposts. It is loosely based on the ‘LegalAware’ blog survey conducted at the end of February 2012.
A ‘powerful state’ is often left undefined by contemporary politicians and lawyers. The problem may not come from determining what lies in scope of the state, perhaps including the judges, the MPs, the police, or their Lordships, but explaining what that power is and how it is manifest. The law relating to whether the UK should intervene in Syria is a different entity to the laws regulating how the UK should intervene with its own citizens, and the general notion of the ‘abuse of power’ is an important one. David Allen Green has done much to highlight its significance, and, in his regular column in the “New Statesman”, David recently considered the relationship between civil disobedience and the rule of law.
It is perhaps the easier option to consider the meaning of the saying ‘everyone is equal in front of the law’, by considering what happens if individuals are not equal in front of the law. It may be possible to obtain a super injunction contra mundum if you’re rich. It may be plausible that the law has to treat invididuals equally to be just, if one can find readily examples of individuals who have been treated unequally which gives the semblance of injustice. For example, the Justice Gap recently reported that criminals are to be banned from making claims for injuries from a special fund set up to help victims of crime, as originally reported in the Guardian. Ken Clarke, the justice secretary, is expected to tell MPs that he will prevent prisoners from making claims from the Criminal Injuries Compensation Scheme.
Meanwhile, David posits that:
The key problem with the Rule of Law in this country is not that, from time to time, protesters may stay in certain private and public spaces too long. It is rather that many with power feel — or know — they can get away with far worse abuses, from non-complying with financial regulations to bribing public officials. Indeed, the police officer happily using excessive force is as much a law-breaker as the aggravating trespasser, and his or her culpability is actually much worse because of the coercive force they are abusing.
There is a public perception, from many, that ‘there’s one rule’ for one group of people, and other for another. Did the law fight a battle regarding the tax affairs of Premier League football managers in a disproportionate way to how it had fought the tax affairs of large multinational companies? David’s point above is a good one, but one which I feel results for the ‘rule of law’ having an emphasis on equality, rather than fairness per se. I am certain whether this distinction is a significant one, but one which I am quite mindful of.
David is, of course, correct to say that E.P. Thompson was a great left-wing historian, but he was also a remarkable socialist often highly critical of English Labour politics. E.P. Thompson may represent himself a reconciliation of liberal and more radical approaches to the ‘rule of law’. The beginning of Thompson’s “Whigs and Hunters” appears to reinforce an argument that the law appears to be an instrument of brute force by which the ruling class exerts its hegemony; however, a significant point is that Thompson does not view the law as having an ideology, but rather that it must have its “own logic, rules and procedures.” The interrelationship between the law, society and economics is clearly one that intrigues Thompson, and Thompson specifically advances the notion that the law’s partial autonomy from the pure politics of power that renders rulers (unwittingly) “prisoners of their own rhetoric.”. According to Thompson, people in power themselves must not be seen constantly flouting the law or else the general public will not accept and respect law as a legitimate social institution.
The regulatory bodies have as a major concern the perception of the law by the public. It is impossible to divorce the power of the State from the public’s faith in the functioning of the state. The exact operations of the Extradition Act (2003) has raised now the issue of whether one state is more important with another; Christopher Tappin, who has just flown from England to the U.S. (see article by Owen Boycott in the Guardian), has claimed that Abu Qataba has more rights than him. Abu Qataba has brought into sharp focus again the power of the state in protecting its own citizens. The UK Human Rights blog recently reviewed latest developments in the Abu Qataba case in an excellent article by Sam Murrant:
Qatada’s release from prison has sparked a great deal of commentary, including from Rosalind English, who posted on the case here, and from freemovement, who makes the point that this decision is actually based in British rather than Strasbourg law, here. The Attorney-General Dominic Grieve commented in the Guardian on the tension between concerns over the release of a dangerous suspect such as Qatada and the implications of indefinite detention without trial for the rule of law in this country.
Simon Jenkins writes that Britain should either give Qatada the law’s full protection, relying on ‘British robustness’ to safeguard against his extremism, or deport him, ignoring the ECtHR’s ruling. Bagehot’s Notebook in The Economist is more guarded on the subject of breaking international obligations, commenting that to do so would harm Britain’s reputation.
Our MPs have recently decided on whether criminals who have (or have not) repeatedly flouted the law should have voting rights. However, likewise, the UK is in tricky territory if it decides to flout the law of European Convention of Human Rights, and perhaps the purpose of the law in a powerful state is tempered by being part of a wider community of powerful states. What the state chooses to do to its own citizens, and whether citizens feel part of a truly liberal society, is however of fundamental importance to all of us.
