At the risk of sounding even more of an illiberal apologist for the government than I have been of late, having read around the issue of clause 59 of the Police,Crime, Sentencing and Courts Bill (#killthebill) the objections seem to me to be groundless.


The Bill is here

It is a product of this Law Commission Report, if you read cl 59 and the conclusions at pp 78-9 you'll see they're nearly identical.…

So, the clause is the produce of a Law Commission Report from 6 years ago.

The Law Commission is a technical law reform body set up in the 60s. It is indepedent of government.

Now the wording of cl 59 might be tightened or more narrowly drafted, but whether the Bill is a "Very Bad Thing" should be determined by whether the offence created is worse than the law as it currently stands.

Is it?


The current law is a common law offence called "public nuisance". This is clearly and carefully discussed in the Law Commission's Report at pp 5-14.

The problem with the common law offence (as with all common law offences, see one J Bentham) is that its boundaries are very obscure. The current law really *is* worth protesting about, It provides very poor guidance both to citizens and to the police.

Te Law Commission's job is not to decide policy questions which are the realm of Parliament. It is a fence mending body. And that is what it has done in its proposals, and that is what cl 59 attempts to do.

It is a codification of the current law, using clearer language. A quick look at Archbold tells me that the common law offence of public nuisance is not moribund or unused. It is live law.

As a codification, any court should (and would) interpret the provision in the light of the current law. The clause introduces a new rule (Cl 59(3)) that is a slight narrowing of the offence "reasonable excuse").

The correct interpretation of the offence would also be governed by the Human Rights Act.

There is no express provision in relation to protest, but the current law makes no such express allowance either, and the clause at least has a new rule ("reasonable excuse") that does so cover protest.

Now you might still object to cl 59, and think it should be narrower.

Fair enough.

But on any fair reading it is clearer and narrower than the current law.

It would have been a good thing if those denouncing the Bill, particularly lawyers, had responded to the Law Commission's original Consultation Paper.

10 (ten) people did so.

If you were a government minister, and saw the response to a fairly innocuous piece of legislation to codify part of the criminal law, how would you respond?

I'd respond by never touching any Law Commission proposal on the criminal law ever again. It clearly isn't worth the cost.

So, the effect of the scaremongering about cl 59 (which may be a Bad Offence, but is less bad than the one we now have) is that all hope for reform and codification of the criminal law will be killed stone dead.



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More from @SpinningHugo

22 Mar
A quick reminder of the difference between stock and flow, and why AZ did not enter into inconsistent contracts with different parties, so that the complaints of one party are wholly unjustified.

If I have 1,000 widgets in my warehouse, and agree to sell 700 of them to Ursula, and 600 of them to Boris, I will be unable to perform both contracts. They're inconsistent.

So, the complainant against AZ is that it has done that. the Commission (and others) see AZ delivering vaccines to the UK, out of factories that the Commission's contract says that AZ can deliver doses to it from.

Is this unfair?

Read 12 tweets
12 Mar
A short thread on Sumption's claim that there is "no moral obligation to obey the law."

(He says this at 37 mins in, and he seems to mean it. He doesn't qualify it by saying "some laws"or somesuch).

The positive law is just a bunch of facts. It is a set of rules created by those with authority to do so.

How can it impose moral obligations upon us? Facts alone can't do so, even rules. There is no moral obligation to follow the rules of monopoly (without more ado).

A moral obligation to do X exists where there are good reasons to do X.

We owe moral obligations to others where those reasons feature others.

We have moral obligations of easy rescue for example.

Read 9 tweets
21 Feb
What I think @JohnRentoul has missed out here, is why @AnnelieseDodds is there in the first place, and why I think it doubtful Starmer will move her. (whihc is also why the usual Corbynite suspects hace reacted furiously to the piece.

Dodds has not, as Retoul's predecssor used to say, troubled the scorers in her role. It is a tough job in the best of times. Sunak is an able politician, however much he has messed up on covid. But she has no ideas and is a poor communicator.

Why then is she there?

Dodds was first elected in 2017. She was therefore not an MP when the PLP tried to remove Corbyn.

Most members of the PLP were not prepared to serve under Corbyn after 2017, so the pool he could draw upon was very small.

Read 11 tweets
20 Feb
The Uber decision raises a nice issue in relation to substance and form, that also arises in other areas (the court muddles this a bit, and fails to cross refer to other areas where this applies).…

So, one way of giving "substance over form" is to look to the substance of the legal rights and obligations the parties have created, ignoring the label they have put upon their relationship.

So, if your agreement gives you exclusive possession of a flat for a period of time with payment in exchange, that is a lease. Doesn't matter if it is labelled a "licence".

The legal substance trumps the label the parties choose.

Read 9 tweets
18 Feb
I wonder how long this "the UK is 4 week ahead because of its risky decision to approve vaccines" nonsense will seem credible.

Look at the vaccination rates.

4 weeks ago was 18 Jan. UK was vaccinating 0.4 people per hundred, today it is around 0.6, everyday.

EU member states are around 1/4-1/5 of that rate, with no sign of ramp up.

This "reckless Brits" stuff is not just wrong, it is dangerous.

If you want vaccination to work you have to convince the doubters that it is safe. Which is hard for the Commission, which doesn't have the trust .and loyalty that, say, the NHS does here.

Read 4 tweets
29 Jan
Ok. Having now read the contract through a couple of times, my initial view that the Commission had no good argument remains the same.

A quick run through the contract…

The central obligations of AZ are found in 5.1. As Soriot said, it is to use "Best Reasonable Efforts" to manufacture and distribute the doses.

5.4 is clumsily drafted, indeed makes no sense on its face given it is said not to apply to 51., but I'd read it as meaning AZ is to use EU and UK sites in fulfilling its BRE obligation.

Read 22 tweets

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