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The mistaken legal philosophy of Mr Damian Green and the incorrectly named ‘Great Repeal Bill’

The de facto Deputy Prime Minister of the United Kingdom, Mr Damian Green, has been doing the rounds of the television studios explaining why, in his opinion, all European Union laws should be “incorporated” en bloc into British law.

In a wonderful example of missing-the-point, the opposition (the BBC and so on) are complaining about everything – apart from what they should be complaining about. The ‘Great Repeal Bill’ does not actually repeal any regulations – it turns European Union regulations into British regulations, but it does not repeal them. It does not make them ‘void’ as the regulations of Cromwell (for example banning Christmas and punishing adultery by death) were declared ‘void’ en bloc in 1660.

But why does Mr Green (and the Prime Minister – and others) think that European Union regulations have to be ‘incorporated’ into British law – why not allow them to become void in March 2019 and return to the Common Law? The question is not really an administrative one, as Mr Green would claim, it actually goes to the heart of legal philosophy.

To someone like Mr Green ‘the law’ means detailed regulations governing every aspect of economic life – to him the only alternative to this is chaos (people eating each other – or whatever). Mr Green has indeed heard of the Common Law (most certainly he has) – but the term ‘Common Law’ to a legal mind such as that of Mr Green means ‘the judgements of judges’, the Rule of Judges rather than the Rule of Law.

I am reminded of a ‘Dialogue Between a Philosopher and a Student of the Common Laws of England‘ by Thomas Hobbes. The ‘philosopher’ is, of course, Mr Hobbes himself – and the defender of the Common Law is a made up character who is written by Mr Hobbes to lose the ‘dialogue’.

To Mr Hobbes, as to Mr Green, ‘the law’ is just the ‘commands’ of someone (a legislature, or an official. or a judge), there is no sense in Mr Hobbes that ‘the law’ is a set of PRINCIPLES of natural justice that one tires to apply in everyday life (in individual cases).

As far as I can make out someone like Thomas Hobbes or Jeremy Bentham (or Mr Green) thinks that when a judge such as Chief Justice Sir Edward Coke or Chief Justice Sir John Holt heard a legal case they either decided it on the basis of an Act of Parliament, or a ‘precedent’ (i.e. what some earlier judge had said), or simply on the basis of what-they-felt-like (a whim). The idea that they followed certain PRINCIPLES of jurisprudence does not occur to him.

It is like watching a modern ‘legal historian’ examine the judgements of Sir Edward Coke – “he was inconsistent” (they declare) “because he followed some precedents and not others” – the idea that there are principles-of-natural-justice that allowed Chief Justice Coke (or Chief Justice Holt) to tell what were just and what were unjust precedents does not occur to them. These great legal minds were not just pulling judgements from their backsides – they were following the laws of reason (of natural justice) in coming to their judgements.

Again people such as Mr Green do not seem to understand that the voluntary interaction of human beings is NOT a Hobbesian ‘law of the jungle’ with people eating each other. It is a ‘spontaneous order’ (to use the term of the late F.A. Hayek – and without his implication that no is thinking about it by ordinary people as they do it, it is not that ‘spontaneous’) a ‘cosmos’ rather than a ‘taxis’ in Ancient Greek – or a ‘Civil Association’ not an ‘Enterprise Association’ in the terminology of the late conservative thinker M.J. Oakeshott (and without his efforts to try and rehabilitate Mr Hobbes).

Most of the time people do not rob or murder each other, and they make agreements that are voluntary and beneficial to both sides – those are the assumptions of the Common Law. Only when people step outside this Civil Association relationship and try and rob or cheat each other does the law step in. It is not the role of the law to tell you how to live you life in every detail (as with the Emperor Diocletian and the late Roman Empire – or the modern European Union), it is the rule of the law to step in when people try to abuse the bodies or plunder the goods of others.

When deciding what a good or service be like it is the view of the Common Law that it is a matter for the buyers and the sellers to decide voluntarily between them – with the law only stepping in if someone complains of being robbed or cheated.

But it is the view of the European Union that what a good or service should be like is up to them – that they should decide this and then impose it upon both buyers and sellers. In this they hark back to such figures from history as Louis XIV (the ‘Sun King’) and his Chief Minister Colbert – and it is a tragedy that a self described'”Conservative’, such as Mr Green, should in-effect agree with them.

“The European Union is not going to be doing this anymore – so the British government must do it” – no Sir, no one needs to ‘plan society’ in this way. People most-of-the-time can make and carry out their own plans – thank you very much.

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17 comments to The mistaken legal philosophy of Mr Damian Green and the incorrectly named ‘Great Repeal Bill’

  • Bruce

    Sadly, your “system’ has been “gamed” to the point that there may NEVER be another Cromwell, and certainly never another Churchill.

    Nor anyone else allowed to live long enough to declare “a pox on both their houses” and MAKE IT stick.

    The British frog is pretty much “slow cooked” completely.

    Then again, the lights that have long gone out in most of Eurabia and large chunks of the rest of the world, may not be re-lit for centuries, if at all.

    This has NOT happened by accident. Neglect, arrogance, ignorance, treason, enemy action? All of the preceding?

    Cheers from the Penal Colonies!

  • Julie near Chicago

    Paul, Very interesting piece, as always. Thanks. :>)

    .

    Richard Ebeling has an interesting lecture on “The Intellectual Roots of Spontaneous Order,” from 1996. Gosh — 21 years ago!

    38 minutes at

    UT — .com/watch?v=mG5MMi5VUNo

    Also at Cato somewhere, I think. Maybe at libertarianism.org .

  • tomsmith

    There is no chance of returning to common law for the reason mentioned over and over on radio 4 yesterday- because politicians want to retain the power to legislate on detail, rather than hand the power to judges. Incorporating EU law will enable them to continue to do this. Returning to common law would hand it to judges. So will never happen.

  • I am fully in favour of getting absolute and uncompromised rid of the ECJ’s jurisdiction (and that of any other EU or EU-like court) over UK territory and anything going on within it. This immediately on the BREXIT of 19th March 2019 – cliff edge style!

    Thus some sort of “Great Transfer of Jurisdiction Bill” is necessary as a practical measure. This because we cannot rearrange overnight 40-ish years of dodgy EU law making into good British law making.

    To make things both palatable and practical, what we need is a suite of sunset clauses covering everything in the “Great Transfer of Jurisdiction Bill”. This would mean that the EU Law transferred would all die away (over say no more than 5 years), with that Bill specifying shorter sunset periods for the less desirable items (being no more than 1 year for several). Only by the UK Parliament (and appropriate regional assemblies) passing new bills of a particularly British nature and largely compatible with the Common Law philosophy Paul describes, would there be any avoiding matters affected by the transferred EU law fading rapidly out of our legal system.

    So, with lots of specified sunset, we would really have (effectively) a “Great Repeal Bill”: repealed soonish unless reintroduced later in an appropriate British way.

    Best regards

  • Mr Ed

    The only practical benefit of the bill will be that it would prevent the ramblings of the ECJ and its ability to read into EU law matters unimagined by UK lawyers from taking effect after independence. There is a strong argument that for the sake of legal continuity (as Nigel points out above) there needs to be a ‘fixing’ of the law so that there is no great uncertainty as to what the law is.

    What I do not see is any will to repeal a single regulation. However, it will be possible to repeal anything and/or everything once the UK is independent. Before independence, it is impossible to repeal anything.

    For example, at the last GE, I heard no mention of any possibility of abolishing, simplifying, modifying or even reducing VAT. It seems to be taken as a given that VAT is there to add 20% (in almost all cases) to almost anything that you buy apart from food, medicines, gold, land, books, newspapers and children’s clothes and a few other things.

  • Paul Marks

    One major mistake in my typing – I meant to type “without his implication that no one is thinking about it as ordinary people do it” (engage in civil interaction), of course there are plans they are just not government plans – they are the plans of the ordinary people. Hayek sometimes writes as if humans were not beings (agents) at all, but that is another matter. For the purposes of this topic the late F.A. Hayek would agree what people should be left free to engage in civil association – although he might not have agreed that people were persons (reasoning agents – capable of “human design” in their own lives, not just “human action” in the sense that, for example, zebra evolved to have stripes).

    The Common Law assumes that, most of the time, people have a reasonable understanding of the consequences (at least the short term consequences) of their actions – and that freedom is NOT like that of water gushing out after a dam has been blown up. That freedom is not just an “absence of external restraint” but the capacity for and and exercise of, moral choice.

    That is why the Common Law holds that is, generally speaking, Bad Thing (T.M.) to take the freedom of people away by ordering them about with threats of violence. If people are not persons, if they are just flesh robots following their programming – then it would not be a Bad Thing. And this is the opinion of Mr Thomas Hobbes and, it appears, of the people who control the European Union and much of the modern world.

    Do they regard themselves in this “light”? Almost certainly not (I think they hold themselves to be person – planning us all for “the good that only the wise can see”) – but they do regard us ordinary mortals as not really moral agents, although it may (at times) be useful to talk and write “as if” we were persons rather than flesh robots.

  • Derek Buxton

    I fully agree, to repeat the failings of the past is ridiculous. We should go back to “the Common Law”, it worked for a great many years and worked well. What we have now bears little or no sense of Justice as we know it and have fought for over the years. Amazing, that those Countries who we had to fight to save from injustice are now running our system on their terms. Did we suffer all those years for this?

  • Paul Marks

    Quite correct Mr Ed.

    Nigel Sedgeick.

    If Parliament gets into the business of deciding which (of the endless thousands) of European Union regulations is “desirable” or not – then the whole thing will collapse into a mess (as the “Remainers” know well – that is why they support this).

    Parliament was not meant for the modern “Administrative State” – and that is not to attack Parliament, it is to attack the modern “Administrative State” which is not really compatible with Parliamentary government. “The New Despotism” by Chief Justice Hewart warned of this way back in 1929.

    Once one has created the sort of state that is there to “plan society” (plan the ordinary economic lives of millions of people) in the way that Jeremy Bentham or Sir Francis Bacon (the master of Thomas Hobbes) or Sir William Petty (the follower of Thomas Hobbes – and with his own dreams of “planning” the lives of everyone in Ireland) then Parliament can not (repeat CAN NOT) really control such an all-mighty-state. Members of Parliament just do not have the time to read (let alone decide upon) all the regulations required for such a state.

    That is why it is silly (to use a mild word) for someone to say they admire Sir Francis Bacon, Thomas Hobbes, Sir William Petty, Jeremy Bentham…… and then say they want Parliamentary government.

    An all mighty “administrative state” (with its professional “experts” in every field of life, and full time Policy Civil Service) that the above thinkers would create is not really compatible with Parliamentary government – which can only control a much more limited state.

    The same is true in the United States – when in 1935 the Supreme Court declared (by nine votes to zero – in the case against the National Recovery Agency that President Roosevelt had set up to imitate Fascist Italy) that the only Federal law (other than the Common Law) there was, was that specifically voted into effect by the legislature (Congress) President Franklin Roosevelt declared the Supreme Court had a “horse and buggy” view of the Constitution. What did he mean by this?

    President Roosevelt meant (and, I think, Mr Ed will agree) that if (if) one wants a “modern administrative state” that plans the lives of everyone, the idea that Congress must debate and vote on everything that has the force-of-law is IMPOSSIBLE (members of Congress just do not have the time, or the knowledge, – they can not do it). So vague “Enabling Acts” (after the manner of National Socialist Germany or Fascist Italy) are needed – with professional officials filling-in-the-blanks in a Jeremy Bentham 13 Departments of State (although there need not be 13 Departments – it could be more or less Departments than that).

    During World War II the Supreme Court came, de facto, to agree with Mr Roosevelt – and, in effect, reversed its 1935 judgement. Today most American regulations were not specifically voted for by Congress – indeed most Congressmen and Senators have never heard of them. The same is true in United Kingdom, and is inevitable if one wants a “Modern Administrative State”.

    The question is “are the Civil Servants accountable to British ministers or to the European Union for the regulations they issue?”

    Parliament can at least have an indirect effect by “holding British ministers to account” for the more extreme abuses of power by the professional government employees. If the regulations are made under European Union (not British government) authority, then Parliament might as well be abolished, as it can demand that a minister answer questions but the minister can simply say “I have no power over these matters”.

    Best Regards.

  • Paul Marks

    It is one of the great ironies of history that Parliament (and the American Congress) passed the de facto “Enabling Acts” that led to its own castration.

    First Parliament took it into head (if I may use this form of words – for the seduction of Parliament by the base flattery of Sir William Blackstone and others) that it was supreme above the Common Law and could pass any “law” it liked (rather than decide what the law already was – as the “High Court of the Crown in Parliament”) – which would have enraged Chief Justice Sir Edward Coke and Chief Justice Sir John Holt. Then later (the 19th century) Parliament started to, “de facto” hand over its (unlimited) powers to professional government employees – the new Civil Service.

    Essentially Parliament delegated its own powers – the very thing that John Locke had warned that no such body should ever do (that it was de facto suicide to do this). John Locke held that the people delegated their powers to Parliament – so Parliament could not delegate (throw away) powers that were not its property, but were only held-in-trust for the people.

    The first dramatic warning sign was (of course) the collection of “data” in the 19th century (so beloved by Sir Francis Bacon and Sir William Petty a couple of centuries before). Government officials coming to the houses of people who had committed no crime, and asking these people questions with threats of punishment if the people did not answer the questions fully. Not in relation to some criminal investigation – but generally, just to gather lots of “data”.

    “What would we want population figures FOR?” asked Financial Secretary Cowperthwait in Hong Kong – and the question is a good one.

    The mania of the Westminster Review types (the Mills and the other followers of Bentham – for example SIR EDWIN CHADWICK) for demanding that the government have detailed information about everything. Why? Why would they want to collect detailed information about everything?

    Intellectual curiosity is not a good reason to set up a professional administrative class and spend tax money so that it can gather more-and-more information about just about everything.

    The only logical reason for a government to spend a lot of money, time and effort gathering ever more information about everything is that it (or rather certain elements) plan eventually to CONTROL everything.

    It is the spirit of the French Revolutionary regimes (or of Frederick the Great and Louis XIV long before)- a government that wants to know everything about everyone, really wants to control everything and everyone.

    True it was not till the 20 century that we really viewed the Administrative State in its effects – but the actual structure was created in the 19th century.

    Still ministers were still accountable to Parliament – and could (if they made the effort – a big “if”) reign in the more extreme abuses of power by the administrators (although they had lost the power to simply “hire and fire” the administrators – which should be the core of “democratic control”).

    But with the rise of the European Union the power of Parliament and of ministers became a mere fiction – as a Civil Servant could simply say “I am obeying European Union instructions” and that-was-that.

    So Parliament had gone from one extreme position – claiming to be all powerful, a sort of God-on-Earth. To another extreme position – becoming a mere toy. And the people who supported this power grab by the European Union are the very people who whining about how they love Parliament now.

  • Paul has replied extensively to my suggestion above.

    If Parliament gets into the business of deciding which (of the endless thousands) of European Union regulations is “desirable” or not – then the whole thing will collapse into a mess … Parliament was not meant for the modern “Administrative State” – and that is not to attack Parliament, it is to attack the modern “Administrative State” which is not really compatible with Parliamentary government. … The question is “are the Civil Servants accountable to British ministers or to the European Union for the regulations they issue?” … then Parliament might as well be abolished, as it can demand that a minister answer questions but the minister can simply say “I have no power over these matters”.

    However, I think there is a serious misunderstanding between us.

    I have proposed that the ECJ’s authority over any UK matters shall cease immediately on 19th March 2019. However, the EU laws will be transferred, as in the “Great Repeal Bill” – and fall to UK courts for use. This is surely better for us than the ECJ having any residual authority.

    I have proposed that all the EU law to be transferred shall fade away within 5 years or less through sunset clauses. This also is surely better for us than a bill in which the transferred EU law does not fade away.

    Thus I cannot understand why Paul claims to disagree strongly with these two points. They improve the proposed Bill in ways that, IMHO, Paul would surely favour.

    Moving on, I do understand Paul’s point on the undesirability of the ‘Administrative State’. However, since around 1910, government spending has increased from around 10% of GDP to somewhat over 40% of GDP. Though a lot of that is down to the welfare state and wealth/income transfer motivated by the welfare state, there is quite a lot of it that is down to the greater complexity and interrelationship between people, business and government. We are never going to get back down to that 10% of GDP – but we could get well down from 40%. What I see Paul as seeking is that such detailed policies (say on such things as the Highway Code and health and safety regulations) should not have the full force of law but be viewed as somewhat considered opinion as how society should regulate itself in detail. And that all such detail should be subject to challenge in the courts – with it being possible to say that the ‘Administrative State’ has (for example) exceeded good practice for its own selfish benefit (eg over-simple rules that are easy to ‘enforce’) and not for the proper greater benefit of society. However, with government authority properly back in the hands of the UK parliament (and not the EU), there will be a natural move away from Statute Law to more Common Law. Though this might not go as far or as fast as Paul desires, we are surely all better off with moves in the right (and Paul-approved) direction. Arguing against starting to move in the right direction because we will not go far enough in that direction is, again IMHO, bad: not least as a way to give more power to those who would preserve the ECJ’s influence (and even its authority) over the UK.

    After BREXIT, Civil Servants will again be solely accountable to UK government ministers. And I cannot see any better-placed authority than the UK parliament over the desirable mix of Statute Law and Common Law – which we have had since time immemorial. We the people just need to elect the right MPs.

    Best regards

  • Paul Marks

    Best Regards to you also Nigel.

    My apologies for misunderstanding you.

    My problem was with what you said about “that Bill specifying shorter sunset periods for the less desirable items” – that would mean that Parliament would have to try and decide which (out of the thousands of E.U. regulations) was “less desirable” – an effort that would lead to chaos.

    A better approach would be that of 1660 – with the entire corpus of E.U. “law” declared “void”. It really depends on whether one thinks that everyday like needs controlling by detailed regulations or whether, generally, speaking voluntary civil interaction, and the Common Law is sufficient.

    And I think we are in agreement on that Nigel.

  • bobby b

    Paul Marks:

    You said:

    “President Roosevelt meant (and, I think, Mr Ed will agree) that if (if) one wants a “modern administrative state” that plans the lives of everyone, the idea that Congress must debate and vote on everything that has the force-of-law is IMPOSSIBLE (members of Congress just do not have the time, or the knowledge, – they can not do it). So vague “Enabling Acts” (after the manner of National Socialist Germany or Fascist Italy) are needed . . . “

    And then you said:

    “It is one of the great ironies of history that Parliament (and the American Congress) passed the de facto “Enabling Acts” that led to its own castration.”

    Which leaves me puzzled about one thing (for now):

    Are you condemning the existence of the Administrative State, or merely that it has exceeded its proper scope? And, if you are speaking of its scope, can you set out a bright-line definition of what its proper scope ought to be?

    Or does its great flaw lie in the idea that one should never want “a “modern administrative state” that regulates society – that that very idea is what takes us down the wrong road, and without it there is no need for the Admin State at all? If one decides that a modern administrative state that regulates society is actually desired, is there a way to accomplish it that works but that does not involve delegation?

    (While I think that the administrative state has vastly exceeded its proper scope, I think the alternative might be worse. I picture 27-year-old Senate staffers preparing 2000-page bills and 1-page executive summaries for their bosses to vote on, and there being no meaningful body of Administrative Law allowing citizens to deal with the resulting mess – only politics, lobbying for amendments to Senators with larger things on their minds.)

  • Jon

    Paul, I suspect you are overestimating the complexity of his thought process as attributing a core philosophy where none exists.

    They will incorporate EU law for expedience – because not to do so upsets too many apple carts at once and there’s only so many people a minority government wants to piss off (and because it allows us to perpetuate the argument that we should be allowed something like free trade with the protectionist EU because we have ‘regulatory equivalence’).

    Then in the future, any sufficiently powerful lobby will be able to amend any of these laws.

    Calling it a Repeal Bill is clearly a misnomer. ‘Keeping our options open in the absence of the courage of our people’s convictions’ Bill is closer to the truth.

  • Paul Marks

    Jon – I think Mr Green does have a legal philosophy, perhaps not a very thought out one. but it is there.

    As for repealing regulations – that does not tend to come (when it comes at all) from lobbies. It comes from great moments in history when belief in freedom has an actual practical effect in the world – and such times do exist.

    For example the so called “do nothing Congress” elected in 1946 that refused to carry on with the wild government spending and regulations of World War II (they carried on Britain but came to an end in the United States), and the massive German deregulation of 1948 (when Ludwig Erhard deregulated on a Sunday because the British officials were not in their offices to contradict him). And so on.

    Without a real BELIEF in smaller and less interventionist government it does not occur. Look at Mr Green – do you see that strong belief in smaller and less interventionist government in him? I do not. I do not see it in Chancellor Hammond and so on either.

    But you may be right – after all I am not really know these people. And you are certainly correct about the legal point that to be able to repeal anything we must REJECT THE EUROPEAN UNION.

  • Paul Marks

    Bobby b – you say that you are puzzled. And it takes a big man to admit that – so I have duty to be open with you.

    I am laissez-faire person (at least in what I want – not in what I think I can get) – I make Warren Harding look like a socialist.

    I would like to take the Administrative State and put it thru its own paper shredders.

    Remember I am the swine who thought South Dakota losing government teachers because of law pay was not a problem (and I filled with despair when they put up taxes to keep the teachers, to carry on their agitprop work of brainwashing children with “Social Justice” doctrines) – although that is actually another issue (government spending rather than regulations).

    I am not happy even with specific Acts of Congress adding to the Common Law.

    I would like Congress to be like the Texas State Legislature – turn up for a few days a year (to pass a budget) and then go home.

    And as for administrators making up “laws” – without even specific debate and voting in Congress.

    My full view of that can not be written on an internet site – for fear a child might read the bad language.

    The above is put in American terms – because to put it in British terms would be very difficult at this time in cultural history. People would not understand what I was saying.

  • Alsadius

    In many ways, predictable law is more important than correct law – inconsistency makes planning much more difficult, and that can be a real problem. There’s a reason why we praise “the rule of law” so highly. Incorporating EU law into UK law is unlikely to be correct, but it’s very predictable. That is not a virtue to be set aside lightly.

  • Julie near Chicago

    Well, it was very predictable that if you crossed Saddam, certain unpleasantnesses were sure to follow.

    “Those who would trade their skins for a little predictability…”, so forth.

    (Which is not to deny your point, Alsadius, but only to point out that not all the predictabilities in the legal system are necessarily a virtue.)

    I’m hardly the resident expert on which of the EU laws are the worst, especially for Britain, but I gather that some of them need to be chucked instanter, no matter the resulting chaos. Perhaps with phase-out periods (short ones), as in the better plans to chuck Obamacare in whole and in fine?

    Besides, laws tend to become entrenched … as everybody who was anti-O’care knew all along ….