Anti-Blair move legal, lord says

[struggle4progress]

David Hencke, Westminster correspondent
Tuesday September 7, 2004
The Guardian

A former Labour law officer who opposed the Iraq war said yesterday that legally, Tony Blair would not be able to avoid a parliamentary debate calling for his impeachment.

Lord Murray, the former lord advocate of Scotland who served under the Wilson and Callaghan governments in the 1970s, said it was "perfectly permissible to move an impeachment motion".

Downing Street has argued that the process is effectively obsolete because it has not been used for more than 154 years, since Lord Palmerston faced a motion.

Lord Murray himself faced a call for his own impeachment in 1977. He was accused of mishandling a murder case that involved the wrongful conviction of Patrick Meehan, who received a royal pardon after a failed attempt by Lord Murray to convict another man who confessed to the crime. <snip>

http://politics.guardian.co.uk/commons/story/0,9061,1298663,00.html

[mmonk]

1. Something to watch

[AP]

2. There is a legal principle in the UK that laws that haven't been used for

a long time are not still law. There was a law on the books that said certain disputes could be settled by a duel. I think in the mid 20th c someone invoked it for the first time in over a century and it was held that it was no longer law.

As for a FORMER law lord who was impeached himself, I'm not sure if that's really going to give this move the legitimacy that the press might want to confer upon it.

[burrowowl]

3. English and American Law use

precedence as opposed to French, Scottish Law, Napoleonic Code based on Canon and hence Roman Law.
Should be interesting.

[AP]

6. And one relevant precedent is the common law principle that old laws are

not enforceable.

[AP]

17. It's a distinction without much of a difference since 1707.

Scotland intereprets the law through English common law these days, and since Scotland hasn't codified the civil law, I suspect that that means it's been even more readily brought into harmony with English common law principles.

In any event, it's not relevant to this discussion. The point is that the Brits have an old legal system and laws that haven't been made by a Parliament (wither UK post 1707 or the national parliaments since they came into being recently) are subject to the principle that they won't be applied if they haven't been applied in a long time. In Scotland they've set a firm time frame: 60 years for non-Parliamentary statutes. I don't think England & Wales have a firm date, but I think I remember reading that a 100 year old law wasn't enforced because it hadn't for a long time and it was made prior to 1707.

The only question the is whether the law the anti-Blair PM is trying to use is a post-1707 Parliamentary statute, or if he's applying a common law principle that isn't founded in a statute. If he it's not a post-1707 statute, then the law is almost certainly no longer applicable.

Would you want the Tories to be able to use a statute to impeach a PM you liked based on an ancient law that no elected official ever voted on and was probably used for extremely undemocratic purposes?

[Kagemusha]

4. Parliament is a unique institution though.

It can make and unmake law as it sees fit, and just because something's old doesn't mean that you can't do it, unless the speaker invents a rule saying that you can't. And, well, a speaker who makes up a phony rule in a case like this may rue the day.

It's not something that judges can affect either way...

[AP]

5. I'll repeat: In the UK because something is old, sometimes you don't have

to do it.

Because it's the oldest legal system in the world it had to develop a legal principle that if something is done for a long time, it's no longer law. 134 years is old enough to trigger this legal principle.

There's nothing so unique about parliament that it doesn't have to respect British law.

[AP]

7. It's called "desuetude" -- in Scotland, 60 years of non-use might trigger

it:

(g) Statutes are not considered to be repealed by implication, unless the repugnancy between the new provision and a former statute be plain and unavoidable. Foster's Case, 11 Co., 56, 63 a; 1 Rol. 91; 10 Mod. 118, arg.; Bacon's Abr. tit. Statute, D. A construction which repeals former statutes or laws by implication, and devests long-approved remedies, is not to be favored in any case. Cowen, J., 3 Hill, 472. A statute cannot be repealed by non-user, White v. Boot, 2 T. R. 274; Dwarris on Statutes, 672; though it is said to have been held in the Scotch law that statutes lose their force by desuetude after sixty years. See Dr. Irving's Introduction to the Study of the Civil Law, 123-127, on the doctrine in Scotland derived from the civil law, that laws may be abrogated by long disuse. {Repeal by Implication. — Repeal by implication is very much disfavored. Dobbs v. Grand Junction Waterworks Co., 9 Q. B. D. 151, 158; Wragg v. Penn Township, 94 Ill. 11. In general, the later law must be so repugnant to the earlier that they cannot reasonably stand together. Walker v. The State, 7 Tex. App. 245. It has also been held that where a later law appears to be intended to cover the same subject as a former, the former is impliedly repealed. United States v. Claflin, 97 U. S. 546; United States v. Tynen, 11 Wall. 88. See Bishop on the Written Laws, §§ 158-162. A repeal suspends the penalties imposed, even in respect to cases pending at the time. Speckert v. Louisville, 78 Ky. 287. As to the effect of revision and consolidation, see Scheftels v. Tabert, 46 Wis. 439. — B.}

http://www.constitution.org/jk/jk_020.htm

The principle of desuetude, however, does not apply to acts of the UK Parliament or the Scottish parliament. I'm not sure if the impeachment law the MP is invoking is an act of the UK parliament. If it isn't, desuetude almost certainly would apply.

[Kagemusha]

8. It doesn't have to be a law necessarily.

They'll fight it out but, well, take habeas corpus. Just because it's abused by the police and the state doesn't mean it's suddenly not legal. Or jury trials or whatever. When Blair wants to wipe out 800 years of legal history, he has to actively overturn something that already exists, not simply declare it in destitution (which is the translation of your original french).

[uhhuh]

9. AP, I Hate To Tell You This

But Blair is going to go down one way or another. It's too late for him.

I know you see him as a good man. I know he has offered some great leadership for the U.K. at times, but he is done.

They are going to keep after him, Kerry or no Kerry. In fact, it will probably get worse if Kerry's elected because the conservatives won't have a hard right American leader to help them out, and those who are against the war over there will be gunning for him after the scandals of the chimp administration start getting heavier exposure.

He will be seen as either just a fool, or a willing fool, and his previous support of the chimp won't win him any friends from the new Kerry administration.

He really screwed up over this Iraq thing, and it is a shame, but he will fall soon.

[Zhade]

10. Interesting. AP, you actually feel this way about Blair?

What about Palast's work on Lobbygate? Kinda shows Blair for who he is.

Oh yes, there's the whole "illegal war for conquest" thing, too.

I'm surprised you think he's a good man. Is that an accurate assessment? To be honest, I hope it's not. I enjoy your posts.

[uhhuh]

11. If you search AP's Posts Re: Blair

You will see that he feels he is a relatively good leader.

He seems very fond of Blair and his policies, except for Iraq, but even there, saw him as a moderating force against the chimp's "kill 'em all" inclinations.

I don't see how Blair is going to survive this situation regardless of whether he's any good or not, though.

[AP]

14. He's probably going to survive it because he has made it this far

I see these last few weeks as pathetic last gasp effort to get him out before Kerry gets elected.

[AP]

15. Incidentally, it's not like Schroeder is getting love for being against...

...the war.

he's being punished for the malaise.

That's what Bush was going for to get rid of all the left governments in Europe. Chaos in the ME, high oil prices and all were meant to cause malaise. The public would punish the liberals, even though it was caused by fascists.

Schroeder is getting punished right now for that. It makes no sense, but that's how it's down.

Blair, in my opinion, outflanked Bush.

[struggle4progress]

16. Was Murray actually impeached? Or were there simply noises about it? eom

[Rosco T.]

12. How long till he hangs SHRUB out to dry to save his ......

Parliamentary Bacon (and I don't mean Sir Francis)??

[T_i_B]

13. Impeachment by numbers

As with Clinton, attempts to oust Blair could leave the leader stronger

http://www.guardian.co.uk/comment/story/0,,1292638,00.html