On failing to understand the nature of English law

Last week, Energy Minister Charles Hendry said in public for the first time what had thus far only been said in private – that it is UK policy to support drilling for oil and gas in the Arctic.

Since when did this become UK policy? And why has the House of Commons never debated it?

Hendry told an energy conference that Arctic drilling is \”entirely legitimate\”

Newsflash for the Low Carbon Kid.

In the English system of law you\’re allowed to do anything that there isn\’t a law against.

Is there a law against drilling in Arctic waters? No.

Has there been a debate in the Commons about it? No, which is one of the reasons why there isn\’t a law against it. For if it\’s not been discussed there cannot be a law, can there?

So, drilling in Arctic waters is legitimate because there\’s no law making doing so illegitimate.

And yes, this is a very basic point about the freedoms and liberties of the English. We do not need to ask politicians for permission to do what we desire to do. We only have to be careful not to do what our elected representatives have decided we should not do.

 

19 comments on “On failing to understand the nature of English law

  1. This might be a pedantic point, but doesn’t it hinge on the meaning of “legitimate”?
    The Compact OED gives two relevant definitions. One is “in accordance with the law”. By this meaning, you’re right.
    The other is “able to be defended or justified”. By this standard, Hendry begs the question: maybe arctic drilling can’t be justified on environmental grounds. To this extent, LCK might have a point. Or at least, if he doesn’t, your line of attack should be different.
    Put it this way. If I were to say that Richard Murphy’s economic views were “entirely legitimate”, would you agree? After all, they are legitimate according to our first meaning, but not the second.

    Tim adds: “Put it this way. If I were to say that Richard Murphy’s economic views were “entirely legitimate”, would you agree? After all, they are legitimate according to our first meaning, but not the second.”

    That’s a trick question, isn’t it? For of course Murph’s economic views require substantial changes in law (for example, his insistence that we should disregard moves to avoid taxes when calculating the correct amount of tax to levy, a breach of Common Law rights let alone legislative) meaning that they are by definition, illegitimate in the first sense.

    It’s in the second sense that they are legitimate, in that he does defend them therefore it must be possible to defend them. Note that the definition does not require “capable of being defended well”.

  2. “In the English system of law you’re allowed to do anything that there isn’t a law against.”

    That is the way British law used to be. I am not so sure it is the way that British law is now.

    “Has there been a debate in the Commons about it? No, which is one of the reasons why there isn’t a law against it. For if it’s not been discussed there cannot be a law, can there?”

    Well yes there can. The majority of British laws are passed with no debate in the House. Either through powers delegated to Ministries to pass administrative regulations or through the EU.

  3. For of course Murph’s economic views require substantial changes in law

    …if they were to be implemented. But that’s completely irrelevant. If I wanted to hang the rich, that would still be a legitimate opinion for me to hold in the first sense – the whole point about freedom of speech is that we don’t lock people up for *believing* that we should do things that are currently illegal, as long as they don’t actually do them.

    I am not so sure it is the way that British law is now

    You are, fortunately, wrong.

    Either through powers delegated to Ministries to pass administrative regulations or through the EU.

    Erm, no. The EU has no power to pass any UK laws. EU directives are complied with either in Parliament through legislation, or by powers delegated to ministries.

  4. And I’m failing to understand why we’re discussing English law.
    The drilling will be off the Greenland coast & Greenland, last time I looked, wasn’t part of the UK despite lending us their climate last winter. The UK’s not even on the Arctic Council.
    No doubt the UK government could pass a law banning any UK company from doing off-shore drilling anywhere in the world. But it can hardly legislate against it in Greenland’s backyard whilst permitting it off Yorkshire. It would seem the Danes might be entitled to throw a considerable wobbler at UK’s interference in their affairs.

    Next up the General Medical Council lobbying for Harry Ramsden to be prevented from opening a fish & chip shop in New York to save Mets fans from overdosing on cholesterol?

    (Oh sh*t, shouldn’t give the b*st*rds ideas.)

  5. What Bloke in Spain said. What’s this got to do with Britain? It has no authority to pass laws in the Arctic, and if it is merely supporting the efforts of others to drill there, then it is no more needed to be debated in parliament than the government supporting the sales of Marconi kit abroad.

  6. O/T but I bring you cheering news, Oh Sage. The Atlantic website now has a login for this commenter just as dud as Forbes’. USA, USA, USA!

  7. John B-

    Erm, no. The EU has no power to pass any UK laws. EU directives are complied with either in Parliament through legislation, or by powers delegated to ministries.

    Power is a slippery thing. It is often the case in politics that there is a certain formality of things which does not reflect the actualite. For instance, in theory in England the monarch passes all legislation, after having been merely “advised” by the Parliament to do so. This long ago ceased to be the practise; in reality the Parliament passes the legislation and the royal assent is a formality; indeed there would be a constitutional crisis if Mrs Queen ever refused.

    Nonetheless, the form of the old way remains.

    Likewise, for quite some time in Ancient Rome the dictator preteneded to be merely enacting the will of the Senate, and Rome was supposedly still a Republic. It took quite a long time before they dropped the form of republicanism (basically when Diocletian completed the transition to an Oriental despotism) even though it had long ceased to be that in anything but name.

    And a good sign that such a transition is occurring is that whoever is supposedly wielding the power starts doing it as a formality, as with e.g. the Parliament passing all EU legislation through on the nod.

    The likely problem with the EU is in the future. At the moment it is not a despotism, nor doing any particular evil (at least no more than States governments routinely do). The concern for the student of history and politics and human nature is that it is currently doing those recognisable things which a despotism in formation does; developing the structural shape of a despotic power.

    It is certainly true that at the moment any State can leave, and any an in theory reject an EU law (though already, not in practise). But such evolving structures at some point pass the point where they have all the power in actualite, and consent becomes a formality. And then you find that you can neither refuse nor leave. This is the concern.

    A good example there is the USA; the federal government was originally appointed by the States as a mere co-ordinating authority, with the power still vested in the States. But when some of them tried to leave less than a century later, they found that they could not. The power had shifted, even while the external form had remained.

    How long will it be before a State leaving the EU becomes a matter of “cessation” and perhaps war? We are not there yet. But one day, it is very likely indeed, that will be the case. History tells us so.

  8. Pingback: If law doesn’t say we can’t we can « Homepaddock

  9. Your recent Forbes column regarding life expectancies, which I don’t want to register to comment on directly, incorrectly says that life expectancy is average age at death during a given year, and that it can be skewed by having a disproportionately large elderly population.

    The way life expectancy is actually calculated involves calculating the death rate for each age in a single calendar year, and then summing up the probabilities of a hypothetical individual (one minus the age-specific death rate) surviving each year. Basically it’s the life expectancy of a hypothetical individual who has the current year’s age-specific death rate at each year of his life.

    This method is not vulnerable to distortion via a disproportionately large or small population in a particular age bracket.

    However, the high life expectancy of Collier County could be related to its elderly population if the seniors who live there are healthier than seniors in general, which seems likely, if they’re both financially and physically capable of making the move. Also, a large elderly population could result in lower rates of death due to accident and homicide among the young.

    It could also be due in part to the large Cuban population (high life exectancy) and small black population (low life expectancy).

  10. No doubt the UK government could pass a law banning any UK company from doing off-shore drilling anywhere in the world. But it can hardly legislate against it in Greenland’s backyard whilst permitting it off Yorkshire.

    The UK government is completely free to pass a law banning anyone at all from offshore drilling in the Arctic, whilst all other forms of offshore drilling remained legal. However, it would only be able to enforce such a law against individuals who were physically in the UK, or individuals/companies with assets in the UK.

    The US ban on online poker worked roughly like this, which was why the (Gibraltar-based, visiting his server room in Antigua) head of Betonsports.com was such a complete and utter idiot for deciding it’d be a good idea to change flights at JFK.

    How long will it be before a State leaving the EU becomes a matter of “cessation” and perhaps war? We are not there yet. But one day, it is very likely indeed, that will be the case. History tells us so.

    I’m sceptical, not least from the fact that Lisbon included, for the first time, an explicit process for a member state to follow if it chose to leave. That would be an odd thing to do if you were plotting to become a tyranny with no prospect of escape.

  11. @ 14, john b’s critisisms ignore the realities of the political world.
    UK government can, of course, have any policy that enters it’s demented collective mind. And often does. But it’s thing to have a policy on say a small Caribbean island nation & stepping on the toes of an EU partner.

    Ian B’s fears are well founded. The provision for a member to leave the EU may have been included at Lisbon, but exercising it would be a whole different ball-game. Oh, sure, some small peripheral nation could secede. Possibly with the EU’s blessing. “Look,” the Europols would say. “The Union’s a purely voluntary entity. We’re all nice, reasonable people. We’ve even created a mechanism for4 those who don’t want to stay.”
    Think it’d be that simple for a big player like the UK?
    Let’s say there was a real chance of a party like UKIP succeeding at the next election.
    First there’d be the attempt to nobble it. It’s main rival could have anything it wanted from the EU toy box. Renegotiation of funding? No problem. Then there’d be the below the line stuff. Any trick to discredit it’s candidates would be fair game. Maybe some clandestine funding & encouragement to extremist anti-Europe groups with the intention of getting some violence on the streets. Back the other side as well to guarantee it. The3 whole election would be taking place against a nice little manufactured financial crisis with continued membership of the EU the ‘only’ solution. In the unlikely event a pro- secession party succeeded all the stops would be pulled out. The Europols wouldn’t hesitate to destroy the UK as a democracy or even as a nation if the alternative was losing their own power.
    To be honest, I think Ian B’s right. The only way out of the EU may end up being at gun point which is why there’s so much effort being made to both cripple our armed forces & to integrate what remains within a pan-European defence structure. You might one day see foreign troops on British streets. “Assisting a British Government to restore order.” as it would be described.

  12. John B: “Erm, no. The EU has no power to pass any UK laws. EU directives are complied with either in Parliament through legislation, or by powers delegated to ministries.”

    Erm, yes, but: EU law comes either in the form of directives, which national authorities then enact, or regulations, which are immediately effective in national law, with no intervention in the countries to make it so.

  13. John B-

    I’m sceptical, not least from the fact that Lisbon included, for the first time, an explicit process for a member state to follow if it chose to leave. That would be an odd thing to do if you were plotting to become a tyranny with no prospect of escape.

    That’s because nobody’s plotting a tyranny with no prospect of escape, at this stage. Idealists never do. That was the point of my comment. What we are watching now are (if historical precedent is correct) the development of the forms of such a power structure. It then takes some particular individual(s) to convert it into a despotism once the forms are in place.

    To us a relatively mild example to avoid Godwinisation, the people who set up the US federal government never envisaged the uses it would be put to by the time of Roosevelt’s New Deal. When setting up a structure, you always have to ask not, “what do I want done with this thing?” but, “what can be done with this thing?”.

    It is often said that power corrupts; that is true. But it is perhaps more useful to recognise that power attracts the corrupt.

  14. That’s because nobody’s plotting a tyranny with no prospect of escape, at this stage. Idealists never do. That was the point of my comment.

    Apologies. Your argument is a hell of a lot more engaging than most anti-EU argument, in that it accepts the point that the people currently involved aren’t evil would-be Napoleons (avoiding Godwinisation), and actually deserves serious thought. So I’m not going to reply to it at 1AM a bottle of wine down, but will think about it, significantly.

  15. It then takes some particular individual(s) to convert it into a despotism once the forms are in place.”
    No it doesn’t.
    All tyrannies are to extent democratic. No ruler can rule without the consent of a sizeable portion of the ruled because without them he’s just one weak man. He relies on those below him. The cascading tiers of underlings, all acting in their own self interest to perpetuate his rule. The most beneficent ruler draws from exactly the same pool of individuals acting from exactly the same motives. And amongst those are always the ones to whom any means are justified by the end. Any action acceptable because they’re defending their own position on the slippery ladder of power. The trick to being a kind ruler is not to exhort your underlings to do good but prevent them from doing harm.
    The scenario I described above does not require evil men to orchestrate it. But it’s built into the power structure they’ve created. It doesn’t take a conspiracy theorist to appreciate that all sorts of deals & bargains are struck behind closed doors as people jostle for advantage. Anyone who’s worked for a large company has seen that. The difference is the power these people have at their call. That a question could turn into a suggestion, into a request that becomes an order, that turns into some poor individual meeting a world of grief is implicit in the system. “Who will rid me of that troublesome priest?”

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