Wednesday, October 12, 2005


Right, well it seems technology has a grudge against me, what with me still having no internet, that stupid post destruction and, most gallingly the oddness surrounding my laptop. Nevertheless I shall persevere with a bit of a 'news' roundup.

Firstly, and importantly, the Terrorism Bill, amended, has been published. Against the odds, they've seen reason and 'ditched' the substantive glorification offence, however, it's not dead. Obviously this merits an at least brief perusal, as it is rather important. The substantive offence of 'encouraging' terrorism is still there:
1 Encouragement of terrorism
(1) A person commits an offence if—
(a) he publishes a statement or causes another to publish a statement on his behalf; and
(b) at the time he does so—
(i) he knows or believes, or
(ii) he has reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.
The offences are starting as they mean to go on, worryingly. Firstly, we see that old chestnut rearing its head 'objectivism'. The fact that you can be guilty of the offence if you have 'reasonable grounds for believing' that 'members of the public to whom the statement is or is to bepublished are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences' means it is irrelevant what you actually thought you were doing, the only relevant fact is what a 'reasonable person' would believe. This of course casts the net very widely, especially considering some of the latter points:

(2) For the purposes of this section the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement which—
(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and
(b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated in existing circumstances.
So glorification is back, despite Charles Clarke's assurances to the contrary and it is much the same as before. The funny thing is that this 'change' has simply smuggled the provision in through the back door. Whereas Clarke said the Bill would read:
To make a statement glorifying terrorism if the person making it believes, or has reasonable grounds for believing, that it is likely to be understood by its audience as an inducement to terrorism.
But in fact what we now find is that 'inducement to terrorism' simply includes glorification, the two proposals have simply been assimilated. Again:
(4) It is irrelevant for the purposes of subsections (1) and (2)—
(a) whether the statement relates to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences, of acts of terrorism or Convention offences of a particular description or of acts of terrorism or Convention offences generally; and
(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.
That's right, this isn't about terrorism, this is about enemies of the state (though the former is often shorthand for the latter). But don't worry:

(5) In proceedings against a person for an offence under this section it is a defence for him to show—
(a) that he published the statement in respect of which he is charged, or caused it to be published, only in the course of the provision or use by him of a service provided electronically;
(b) that the statement neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
(c) that it was clear, in all the circumstances, that it did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.
If you don't really think it it's fine. Of course there are more crimes created, but I think this is the most relevant one. A lot of this might well hinge on the judicial construal of reasonable and glorify, both are these terms of rather indeterminate, and the judicary could go more than one way.

Rather heartingly (although disturbing from any legal nihilist's point of view), the judicary might well be able to stand up for themselves this time. Lord Phillips has expressed some rather strong views in a recent interview. The judicary, as of late, have been pretty good at looking after 'rights', and such a statement is nice, especially considering the heat the politicians are placing on the judicary.

What's disturbing about this is that it takes a bunch of white, middle-aged, highly educated blokes to guarantee the ability of progressive forces to organise against the wishes of our 'democratic' parliament. Such a situation does need a materialist explanation, and I hope someone will attempt it.

Of course this Bill underlines what I have been saying about this legislation from the get-go. The definition of 'terrorism', and the notion of 'glorification' are so broad, that huge swathes of people might be 'criminilised'. This means that any 'selection' of the offenders has to be done by the DPP, now I do need to read more about the DPP I admit, and I'll hopefully get a bit of info come Monday. However, there is still a very relevant point to be found here. I mean, examine this article, about academic freedom:
Jonathan Whitehead, the head of parliamentary and public affairs at the AUT, said the new clause still did not require someone to have an intent to glorify terrorism to be caught by the legislation. "A lecturer could still do it by mistake without realising it," he said.
Read the whole article, because it shows the massive indeterminacy that this sort of law will create. However, I'd suspect that most lecturers won't need to be worried, because they will be in that happy majority of people who are simply 'potential' criminals. Something tells me though that a problematic 'core' of people would be ripe for the convicting. Remember that the broad nature of this Bill would criminalise even support for the war in Iraq, this must mean there is an independent, 'non-legal' criterion to prosecution.

Now, let me explain myself further. I do not for one second take the claims of liberal legalism at face value. Firstly, the law and the rule of law are premised on violence, and since they are rooted in commodity production, they are premised on exploitation. Furthermore, I agree with the realists that law is inseparable from indeterminacy and politics. This being said, there are degrees.

Even if 'law' is indeterminate politics, it is indeterminate politics expressed a particular form. This is the form of 'formally equal' legal subjects locked into the concrete relation of dispute, governed by general laws. Now, obviously in practice there are no 'legal' reasons. But the legal form clearly provides a veneer of protection as against pure politics, this is especially so when class struggle is mediated through it.

But the current situation cannot be like this. Becuase although this content is expressed within a legal context, it makes a mockery of the legal form. This law is so broad-based that too many people will be offenders. Thus, the selection of these people can only be made with huge discretion to particular circumstance. Now, although this occurs all the time the degree to which this would happen here is startling. This means that what we are seeing is the 'selection' of people on a political basis so as to punish them. We are no longer dealing with sovereign individuals 'actively asserting' a 'right', we are dealing with a sovereign choosing people on political grounds to be punished.

When something is so broad it allows you to pick anyone, you need a new, exhaustive criteria to pick them. Whilst all laws do this none do so to such an extent. This means that the small protection afforded by the legal form has vanished. In practice many people will be eligible for detention etc., as was seen at the Labour party conferece. Furthermore, this is not some paranoid pipe dream, as historically laws have often been used for new 'purposes'.

Now, I don't wish to pull the 'cookie cutter' leftist card here, but this is a process that was extant in Nazi Germany. Here's a quote from Neumann and Kirchheimer's The Rule of Law Under Seige (p. 138):
'If the general law is the fundamental form of law and if the law is not only voluntas but also ratio, then one must state that the law of the authoritarian state has no legal character. Law as a phenomenon is only possible if it manifests itself as general law. In a society that cannot dispense with law complete gnerality of law is impossible. The limited, formal, and negative generality of law under liberalism not only makes possible capitalistic culpability but also guarantees a minimum of liberty...[In the authortarian state] general law and contract disappear and are replaced by individual measures on the part of the sovereign'
Of course, there are differences here. Firstly, the 'individual measures' are mediated by making the law too broad (note broad and 'general' are not the same thing). Secondly, Neumann traced this trend (as the CLS movement also does) to the increasing monopolisation of capitalism, the growth in state economic intervention and the fusion of state and monopoly power. Whilst I believe such a trend is evident, this legislation, in such an exaggerated form is clearly the result of a specific historical conjuncture.

Anyway, more news when I get it.

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