It is a basic principle of society that everyone has the right to know the law.
Not on St Helena.
A request to be told which Contempt of Court law applies on the island has twice been met with refusal on the basis that giving an answer would constitute “legal advice”.
It matters, because there is a question over a possible breach of human rights on the island.
The refusal has come once through the government press office, and once through the government’s “access to information” procedure, a tentative move towards freedom-of-information legislation.
Is the island covered by the Contempt of Court Act 1981 that exists in English law? Or some modified version of that Act? There is no local ordinance listed on the St Helena Government list of laws.
The lack of a local law strongly suggests – in accordance with the basis of law on the island – that the English legislation applies. However, for the purposes of the human rights investigation, relying on this assumption is not adequate.
The government has refused the FoI-lite request on the basis that the information is already in the public domain and can be obtained from a solicitor.
If a solicitor has to be paid for the information, then it is questionable whether it is in the public domain.
And the island’s Code of Practice for access to information says:
In cases where the information is already in the public domain, SHG will indicate where it can be found.
The government has now been asked to give that indication.
The principle of the right to know the law has existed since Roman times and is accepted by many countries.
As the American organisation Public.Resource.Org puts it:
The right to know and speak the law is the underpinning of government in ancient and modern times.
And on the same site (edited version):
“Only if the law is truly free and available can we expect people and enterprises to obey the law, to know their rights under the law, and to evaluate and participate in the work of improving the law. Only if the law is accessible to all, can we truly say that a society is governed by the Rule of Law.
“The law must be easily available to all people, access to the legal system and the texts that make up the law should not be bought, or sold, or rationed. People must have the right—an unfettered right—to read the law.
“When Justice Stephen Breyer said, “if a law isn’t public, it isn’t a law,” he was expressing the long-standing doctrine of the Rule of Law, one that has become ever more important in our information age.
“Nobody can deny you the right to read and know the law.
“The law is yours to read, yours to know, and yours to speak. This law is your law.”