Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 9 November 2016

On Zombie Legislation

Last week saw the Scottish Parliament vote in favour of repealing the much-criticised Offensive Behaviour at Football and Threatening Communications (S) Act 2012. While the vote is merely advisory, and for now the Scottish Government have undertaken to review the legislation, it creates an interesting new category of 'zombie' legislation. It has not yet been repealed, but neither does it have the support of parliament. It is not yet dead, but not quite alive - the living dead.

But this raises a significant issue. Will it be legitimate for the police to continue to enforce the legislation or for the Crown Office to continue bring prosecutions? Is it legitimate for legislation that has been formally condemned in this way to be used after Parliament has clearly indicated that it is no longer has the support of its members? So far, I can see no indication on the websites of either Police Scotland or the Crown Office that there will be any change in policy.

The vote has been seen as an example of political point scoring, but the underlying criticism is that the offences in the Act are poorly drafted and that the legislation is illiberal - and I have written before about these shortcomings. Until reassurances have been offered on these underlying issues it must be inappropriate to use the Act. This is not to approve sectarianism, but to recognise that there are real concerns about the scope of the offences which were not properly addressed when the Act was passed.

While it may formally remain the law, there is no question that it now completely lacks any legitimacy, whatever its supporters in government might say. It is truly zombie legislation.

1 comment:

  1. Hi LF,
    this reminds me of a situation that arises in Canada every now and again -- most recently when the Supreme Court struck down the criminal code's prostitution provisions. Sometimes, when the Supreme Court of Canada strikes down legislation, it does so prospectively -- i.e., it suspends the effect of the judgment for a period of time (a year or so) in order to give the government time to deliberate and enact replacement legislation. The status of the existing legislation during the interregnum is kind of an open question -- it has been declared unconstitutional, but it is nevertheless still in force for a period of time. I'm not sure if the courts have decided what would happen if a prosecution were brought during that period under the invalidated legislation.