Whither consent?

Writing in spiked! recently, barrister Barbara Hewson suggests that the age of consent for sexual activity should be restored to its pre-1885 position of 13.

Reducing the age of consent to 13 for all sexual acts would bring the UK in line with Spain, although Spain has a legal caveat that allows for prosecution where sexual consent is obtained by deception in the case of a person aged between 13 and 16. Until 1995, the age of consent in Spain was 12. Indeed, Britain’s age of consent is high by the standards of European countries, many of which have an age of consent for heterosexual acts of 14 or 15, although the age of consent for homosexual acts is not necessarily the same. Among other developed nations, Japan has an age of consent of 13, although this is subject to further restrictions.

An interesting note to this matter is that until 1993, English common law held that a boy under the age of 14 could not commit rape as a principal offender because he was irrebuttably presumed to be incapable of sexual intercourse. That a boy of that age is indeed so capable has been the subject of some publicity.

While there is some merit in arguing about the moral, physiological, emotional and cultural import of an age of consent, and the extent to which children need to be protected both from the attentions of adults and their peers, we should also consider all this in the context of what consent has come to mean in the implementation of the law. Consent is not, and never was, the same as a contract, whereby terms are mutually agreed and non-performance brings with it an entitlement to compensation. Rather, consent is a highly complex concept which is changing rapidly in its meaning.

Everyone said “You can’t unseat the Political EnemyClass by voting them out. Well, I say: “it has never been tried before, and we shall have to see.”

David Davis

Clown or fruitcake?

(from Matt at the DT)

Today, for the first time a rather historically large number of British voters get to be able to elect, if they like, candidates for “Council Seats” (this to say in honest countries – “socialist Soviets”) from the United Kingdom Independence Party. Now, the Libertarian Alliance goes out of its way to be perennially nasty to all the parties extant in the UK, from time to time, and sometimes all at once. But it’s natural that a little more of our ire and frustration is reserved for those which are more truly socialist than others: for I at least can’t figure out how it might be possible to be what some people call themselves, which is “libertarian socialists” (yes I have heard that one) or even “left libertarians”, although that might just be possible.

This round of elections for regional soviets councils is notable for the frantic and public attempts by other parties, particularly the Tories, to make direct and sometimes ad-hominem attacks on the reputations and backgrounds of rather a lot of UKIP candidates. I’ve been watching British elections since 1959, more or less, and haven’t noticed any such thing on this scale ever before. If they occurred, such assaults tended to come from the socialist left.

The entire British political-class, ably egged on by the BBC, appears to have taken fright at the idea that, for once, letting people vote for who they’d like might actually change things, and not to that class’s liking. As I type, there are no results yet from vote-counting, but the morning may be interesting.

I want to continue by offering a libertarian-based policy position document for a party such as UKIP, were it to, let us say, win a majority in a regional soviet, or even a general election. But as rheumatoid arthritis is making my elbows increasingly non-functional tonight, typing is a little strenuous and exciting. So I’ll save that for a post in the next couple of days or so when the painkillers have kicked in.  Meanwhile, commenters might like to add their own suggestions.

 

(Incidentally, the headline owes a little credit to Air Marshall Arthur “Bomber” Harris”, who used a similar expression when someone suggested that “you can’t win a war by bombing the enemy alone”.)

Proof that Evil Traitor Heath Infected with Evil Paedo Virus by Evil Shape-shifting Lizard Jimothy Saveloy

Oh, but I’m getting so bored by the paedo witchhunt that I can barely feel alarmed by the latest turns in its lunacy. A Coronation Street actor is now being done for an alleged assault 46 years ago – the complainant is now 61! I suggest that anyone who waits this long before making a complaint should be ignored without further investigation. There should be a limitation on child sex prosecutions of three years from the date of the alleged offence, or one year from the complainant’s reaching the age of 18, whichever is longer.

This isn’t because I think well of people who have sex with persons under the age of consent – I don’t – but because the present law is almost self-evidently unjust, and will eventually bring the criminal justice system into ridicule and contempt.

You can no longer be sacked for your political beliefs

The recent case of Arthur Redfearn has proved to be of some significance in establishing a firmer basis for freedom of association within employment law.

Mr Redfearn, a bus driver, was considered a “first class employee” and had neither attracted complaints from his employers, West Yorkshire Transport Services (a subsidiary of Serco), nor from service users, during the short period of his employment. Not long after starting work with WYTS in December 2003, Mr Redfearn won a seat on Bradford Council representing the British National Party. He was featured in an article in the local newspaper and this prompted a trade union and other employees to make representations to WYTS. WYTS’s response to this pressure was summarily to dismiss Mr Redfearn on 30 June 2004. Because he had worked for them for six months only, which was less than the statutory minimum period, he was unable to bring a case for unfair dismissal against them. Instead, he was compelled to claim racial discrimination (on the basis that the BNP was, at the time of the case, a “whites-only organization”) – an ironic position given the BNP’s longstanding opposition to racial discrimination legislation.

The New Defamation Act: An Overview

http://www.carter-ruck.com/Blog/?p=488

Note: Anything is to be welcomed that makes it harder to bring and win a libel action. Many of the new law’s provisions – ie the serious harm test – may codify recent decisions of the courts. Even so, it is nice to see these set in stone, rather than subject to judicial drift. Also, it does seem as if Parliament has taken these decisions on their most liberal interpretation. Certainly, the single publication rule makes life easier for anyone who runs a blog or a website, as does the widening of the innocent dissemination rule. I’m glad to see that corporate bodies will be effectively barred from bringing libel actions, and that scientific and academic journals can no longer be scared by threats from wealthy interest groups.

I don’t like the abolition of trial by jury in libel actions. On the other hand, trial by jury is plainly being abolished in this country. Since all cases soon will by tried by judges sitting alone, or by panels of judges, we might as well have laws for them to apply that are not grossly oppressive.

Our Blogmaster and I will need to keep an eye on the meaning of the changed innocent dissemination rule. This will probably allow us to host more outspoken comments than we have so far welcomed. However, we might also have to require all members of our community to identify themselves to us. We shan’t welcome this, if it does become a requirement, and our compliance will be the absolute legal minimum. But we shall comply with what is required.

On balance – no, probably very much so – the new Defamation Act is an oddly liberalising law for the country and age in which we live. Of course, freedom of speech on public issues is more constrained than ever by the laws against “hate” speech; and we need to see what scheme of censorship will emerge from debates over the Levenson Report. But the Defamation Act is the first law I can remember for many years that does not merit our usual denunciation. SIG

Libertarian Alliance Statement on an Earlier Defamation Act

From Free Life, Issue 26, December 1996
ISSN: 0260 5112

Defamation Act 1996
HMSO, London, 1996, 19pp, £4.30 (pbk)
(ISBN 0 10 543196 6)

This may loosely be called “the Hamilton Act”, as its most famous provision is the one allowing Neil Hamilton MP to continue his libel action against The Guardian. Before looking at this, however, we will examine the other, equally important, sections of the Act.

These are on the whole excellent. We believe that there should be no laws whatever against defamation. People should be free to publish whatever they like about each other; and public opinion should be the only arbiter of truth where any dispute arises. At the least, a plaintiff should be required to prove damage before winning a libel action; and perhaps should be required to prove malice as well. Certainly, the existing law gives no protection to those who cannot afford the £20,000 that the average libel action now costs, but serves mostly to protect rich or well-connected villains like Robert Maxwell, Jeremy Thorpe, and others whose names we currently dare not mention. There is no chance that our belief will ever be accepted by the rulers of this country. Even so, the present Act does reform the law in a more liberal direction.

The good is oft-interr-ed with their bones

David Davis

Since Margaret Thatcher is to be in-terr-ed tomorrow, I just thought we’d throw one last punch at her enemies and ours. I found this wonderful piece on The Last Ditch the other day, and one para deserves to be highlighted in our usual way:-

“If you want to know who freedom’s enemies are, mention her with approval. Mad eyes will light up all around you and foul sentiments will fill the air. Note their names and never leave them alone with anything you value; material, spiritual or ethical.”

Yes of course, I _know_ that we object to her having

(a) made the British State more efficient – as a recipe for disaster one would recommend this since the British-Political-Enemyclass is efficient already at making a powerful tyrannical state, and

(b) because she failed to absolutely destroy socialism at home and in the world, before members of that same EnemyClass destroyed her.

But I think that Tom Paine’s paragraph sums up who we are up against, whatever we as classical liberals think of Thatcher herself. I think we can lay her to rest now. May The Iron Lady Rust In Peace.

Sean Gabb on the Thatcher Police State (May 1989)

The Full Coercive Apparatus of a Police State:
Thoughts on the Dark Side of the Thatcher Decade

Sean Gabb

3rd May 1989, Published as Legal Notes No. 6, by the Libertarian Alliance,
London, 1989, ISBN 1 870614 39 9

Ten years ago (1979) I gave way to one of my rare bursts of enthusiasm. I was at the time, I’ll grant, still a schoolboy; and these things are always more permissible in them than in others. But, even for a schoolboy, it was a very great burst of enthusiasm. I seriously thought that, along with Mrs Thatcher, the second dawn of classical liberalism had arrived. This was it, I thought. No more socialism. No more national decline. No more Road to Serfdom. Oh, even as lads of my age went, I was naïve.

Any (Good) Thing the State Can Do, We Can Do Better

http://c4ss.org/content/17899

Any (Good) Thing the State Can Do, We Can Do Better

The following article was written by Gary Chartier and published on his blog, Liberalaw, June 7th, 2010.

The question whether people in a stateless society could respond satisfactorily to a disaster like the BP oil spill is really just a special case of the general question whether people without the state can do the things people attempt to do through the state. It seems to me that the answer is “yes.”

Freemen of the Land: A Barrister Writes

Note: I do not think the Freemen of the Land should be dismissed out of hand. They are the only semi-libertarians around prepared to gather and make a fuss. Even so, their legal arguments are, to put it mildly, in need of development. Here is a comment on an earlier posting about the FotL. I think everyone will agree that it is important enough to move to the front page. SIG

Jury Nullification: A Barrister Writes

by Howard R. Gray

Juries have a duty to try the case according to the law: this is trite. The judge is the tribunal of law, and the jury is the tribunal of fact: that is the simple rule of how criminal law works, and also just as trite. Judges in England are allowed broad scope to direct juries on the law and often put forward their views of the facts usually pre-seasoned with the exhortation that it is “up to you ladies and gentlemen of the jury” about any particular point they deem in need of comment.

That being said, there is a plethora of rules that they must use to put to a jury about particular points of law and about the standard of proof that must always be there in their directions. For example the “you must be satisfied beyond a reasonable doubt” and “satisfied so that you are sure”, then they go on to give examples. There are the Turnbull directions on corroboration of witness testimony and so on. Each factual element that has a contentious nature must be directed upon in the judge’s homily to the jury at the end of the trial. Failure to adequately direct a jury can result in the verdict being set aside on appeal. Jurors needn’t be too worried that justice will be denied; appeals are often successful.

Jury Nullification

by D.J. Webb

I think there is an important point to be made about jury trials. Of course, the recent collapse of the jury trial of Vicky Price is partly down to the stupidity of the jurors and the removal of the property franchise for serving on a jury — and well-to-do people should never be able to evade their duty in serving on a jury simply because they feel they have other things to do with their time.

“Intellectual Property”: This Land was Made for You an … er, for Monsanto

by Thomas Knapp
http://c4ss.org/content/17358

Note: “Whether it’s Monsanto’s genetic “patent” claim, or the “copyright” demand of a novelist that once he’s strung some words together in a certain order nobody else may do likewise without coughing up, or Ron Paul’s plea to the United Nations to seize an Internet domain name he wants, “intellectual property” is, simply put, an attempt to turn the world into one big antebellum plantation, with the state as indispensable overseer.”

Speaking as an entirely disinterested party in this matter, what other legitimate function has the State but to ensure that a novelist gets his royalties? Writing a novel is no more stringing a few words together than growing food is making a few scratches in the earth. Monsanto, on the other hand, can get stuffed. SIG

Why Does Justice Have Good Consequences?

by Roderick Long
http://c4ss.org/content/17201
Why Does Justice Have Good Consequences?

The following article was written by Roderick T. Long and presented to the Alabama Philosophical Society, October 26th, 2002.

1. The Problem Stated

Today I’m hoping to make you puzzled about a problem that has puzzled me on and off over the years. Misery loves company, I suppose — though the problem doesn’t actually puzzle me at the moment, because at the moment I think I’ve got a solution to it. But I’ve thought this before, and found myself deceived; so I’m not breaking out the champagne just yet.

The problem is this: why does justice have good consequences?

Anticopyright

by Rad Geek
http://c4ss.org/content/17029

Note: Since I earn most of my income from copyright, and hope to make a great deal more to come, I’m not inclined to accept this argument. However, I do accept that intellectual property in its present forms would not survive in the absence of a state to enforce it, and I accept that this raises at least a rebuttable presumption against its legitimacy. I also agree that there are other ways for historical novelists to earn a living that don’t involve calling on the power of the State. On the other hand, with much effort, and at much opportunity cost, I have created a large body of fiction that other people want to read. I don’t accept that this is other than my own property; and, if I feel uncertain about the legitimacy of the legal devices by which my publisher keeps the royalty checks drifting in, I certainly think ill of anyone who dares pirate my work. SIG

Sean Gabb on Drinking and Driving: A Police Officer Writes

Note: I have removed the officer’s name, but this e-mail is reproduced here on the LA Blog exactly as received. I think he is inaccurate in several of his factual claims, especially since I know people who have been subject to random breath testing around the Christmas period. I have also encountered any number of police officers who struck me as either mad or high on drugs. However, since he has taken the trouble to write at such length, and so politely, I do require that those who wish to respond should do so in a calm and factual manner. The officer will, I am sure, be following your comments. It would be useful if he were to go away with a better idea than he appears to have of the objections that we have to police powers and to the frequent use and misuse of these powers. SIG

Who wields the Royal veto?

by D.J. Webb

An intriguing article on the Telegraph website claims that the Royal family are regularly vetoing new laws, although the article appears sloppily written, and in particular the writer doesn’t appear to know the difference between the formal casting of a veto and the registering of some kind of objection to a law in advance.

Neigh More Don’t Ask Don’t Tell

by Matt Wardman
http://feedproxy.google.com/~r/AnnaRaccoon/~3/_NP6logIPnY/
Neigh More Don’t Ask Don’t Tell

It is official.

Section 5 is changing.

It will soon no longer be a criminal offence to enquire as to the sexuality of a horse if that is deemed ‘insulting’ to a random third party.

But I want to ignore the funny cases, saying woof to dogs and ‘scientology is dodgy‘ to the public, and examine changes that will actually be made to legislation. Here the picture is depressing.

Theresa May has said in Hansard that the Government will remove the word “insulting” from Section 5 of the Public Order Act 1986:

Competition – The Policeman’s Bawl…

by Anna Raccoon
http://feedproxy.google.com/~r/AnnaRaccoon/~3/qyDWRbpWm5c/

Note: The police should be abolished, and we should return to the old system of private prosecutions. Until then, every law passed since the Protection of Constables Act 1750, that raises these people above the rest of us, should be repealed. SIG

Why is the State Involved in Childcare?

by D.J. Webb

Women are forced out to work by house prices. This is the real subtext to absurd plans for the state to pay £2,000 to each working woman for childminding. With high taxes and council tax, high transport fees and high childminding bills, it is hard for women to make work pay — and the only result of their trying to do so is to push up the income on which mortgage loans are calculated, thus supporting the property Ponzi scheme.