Saturday, 16 March 2013

Retroactive legislation is fascist legislation

Here's a question: If the Court of Appeals declares your mandatory labour schemes for the unemployed unlawful on the basis that the rules you drew up were incomprehensible, what on earth can you do to prevent paying compensation to the thousands of people you unlawfully thrust into destitution?

There are a couple of sensible answers to this question:
A legalistic response: You could take the case to the Supreme Court and try to get the Appeal Court ruling overturned.
An honourable response: You could accept responsibility for having drawn up a bunch of unintelligible and unlawful rules and resign from your job. Your successor could then compensate your victims, whilst you took the blame for your disastrous mismanagement of your brief.
As you probably know, the question isn't a hypothetical one, it's a very real one. The minister is the Tory Secretary of State for Work and Pensions, Iain Duncan Smith.

If you are familiar with Iain's incredible levels of contempt for the law, the public, the unemployed, the taxpayer, the disabled, the dead, the concept of labour rights and for coherent and rational debate, you'll know that he has absolutely no intention of making a legalistic or honourable response to his blunders.

Iain actually intends to respond to this situation of his own making, by rushing "emergency legislation" through parliament to retrospectively amend the rules.

Iain's response to being told that his botched mandatory labour schemes are unlawful because the rules were unintilligible, is to simply rewrite them and apply them retrospectively, so that had the rules been written that way at the time, people would have been able to understand them.

This is an absurd abuse of process. The imposition of retrospective law is forbidden under Article 7 of the European Convention on Human Rights (no wonder the Tories want to scrap those rights) and it is absolutely bonkers to believe that retrospectively rewriting the rules alters the judgement of the Court of Appeals, in fact it makes their judgement even stronger, given that people will have been punished for failing to comply with rules that hadn't even been written at the time!

If Iain Duncan Smith's "mandatory unpaid labour or destitution" rules were declared unlawful because they were impossible to understand, how possible was it for people at the time to understand the new "emergency" rules that hadn't even been written yet?

It is obviously impossible to understand something that hasn't even been written, therefore this attempt to undermine the Apeals Court ruling is as flawed as it is contemptuous.


There is a very good reason that the imposition of retrospective laws is banned: If the government can simply reclassify past activities as criminal offences, this gives them an incredibly powerful tool to abuse the citizens they are supposed to be serving.

To give a hypothetical example of how retrospectively applied law is totally unfair; Imagine that the drink driving laws are amended to reduce the permissible blood alcohol content from 80mg of alcohol per 100ml of blood to 50mg (a change that is currently under consultation in Scotland), but that the government use the Iain Duncan Smith precedent (that laws can now be backdated) to apply it for the year 2000. Would it be fair for the police to retrospectively charge any driver that was tested between 2000 and the imposition of the new law and found to have blood alcohol level between 50mg and 80mg? Of course it wouldn't because these drivers were clearly complying with the law as it stood at the time.

The imposition of retrospective law is a fascist concept because it grants the state new powers to criminalise law abiding citizens for engaging in activities that were not criminal offences at the time. Once the concept of retrospective law is normalised, the government then has the ability to target particular groups with retrospective legislation. Let's say the government objects to the activities of a particular trade union, they simply retrospectively amend the law so that one of their previous strikes was unlawful under the new rules and hey presto, they can charge the trade union leaders and strike participants under the new rules, for activities that were completely lawful at the time. Let's say the state objects to a particular social activist organisation, they can simply retrospectively classify the group as a terrorist organisation and jail the members (in secret courts) for terrorism offences, for engaging in was lawful activity at the time.

It doesn't matter whether you believe that the particular group of unemployed people that were thrust into destitution for refusing to comply with Iain Duncan Smith's unlawful mandatory work schemes are deserving of compensation or not. The bigger issue is whether you agree with the principle of retrospectively applied laws and the dangerous precedent that would be set if Iain Duncan Smith and the DWP are allowed to get away with simply rewriting the laws of the land and applying them retrospectively.

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