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Common Sense Clause

Comment 2nd July 2010

All regulations and laws should be accompanied by a clear "statement of purpose". It should be an adequate legal defence that what you are accused of doing, while admittedly contravening the detailed provisions of the law, did not in practice compromise the stated purpose of the law.

As a stand-alone extension of this, all laws and regulations should be reviewed every five years and, if found not to be delivering the stated purpose, automatically repealed.

Why does this matter?

  1. This would at a stroke soften the oppressive legalism of much law and regulation by allowing the application of common sense in court. It would also make oppressive prosecution less likely to succeed and therefore less likely to be embarked upon.
  2. It would force the government to be more open and honest since it would be much easier for parliament to approve or reject proposed legislation on the basis of its stated intent rather than having to deduce intent from detailed and obscure clauses or “take the minister’s word for it”.
  3. It would prevent the police and prosecutors from using laws intended for one purpose in pursuit of a different purpose simply because they are easier to apply or give a greater probability of success. For example, it would make it impossible to use anti-terrorism laws to prosecute low-level public order offences of freeze the assets of Icelandic banks.
  4. It would prevent cleaver lawyers from using laws for purposes for which they were not intended to unjustly persecute individuals on behalf of their clients. This is particularly important in civil cases where there is no “public interest” test for prosecution.
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