Tuesday, February 19, 2013

Our judges have become deputy legislators

From Brother Ivo:

The Home Secretary has decided to pass a new law in order to attempt to limit the number of foreign criminals who escape deportation. They do this by claiming that forcing them to leave the country will infringe their right to family life. That right is guaranteed to them under Article 8 of Schedule 1 of the Human Rights Act 1998.

It is worth quoting the Article in full:
Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Unlike the earlier Article 3 provision against torture, which is absolute and unqualified, Article 8 sets out with some precision the kinds of cases where it is both proper and lawful to set a person's right aside because other over-riding interests require it.

Article 8 Rights are ‘qualified’: they can be over-ridden, but often when they can be, they are not.

Brother Ivo is no great fan of the Act or the politicians who introduced but, being a fair-minded cove, he has to acknowledge that it is hard to see how any sensible judge would struggle to deport any anti-social offender he or she wishes to, using the principles clearly and fairly drawn in that second paragraph. The Parliamentary Draughtsman did his work with admirable clarity.

The problem is that judges are not deporting because they simply do not wish to.

Mrs May is hoping to rectify the situation by passing another law, which will be interpreted by those same judges applying the same discretions and the same Human Rights Act principles. Should they decide to deport, the appellant can still seek redress from the European Court of Human Rights.

What could possibly go wrong?

It is unfortunately the case that our Home Secretary was formerly a financial consultant and our Justice Minister / Lord Chancellor was a BBC producer / management consultant. Neither has any depth of understanding or experience of the culture with which they are grappling on a daily basis.

The problem is essentially a cultural one, and until that is understood the judges will continue to run rings round what Sir Robin Day famously characterised as ‘here-today-gone-tomorrow’ politicians.

Brother Ivo blames Lord Denning.

Actually he doesn’t, but Lord Denning was the greatest British judge of the 20th century and the presiding influence of generations of law students who went on to become legal professionals and members of the Judiciary. He was a reformer, but from an intensely traditional and English perspective.

He was also a committed Christian, serving as Patron of the Lawyers Christian Fellowship for many years, and encapsulating his views thus:
"If religion perishes in the land, truth and justice will also. We have already strayed too far from the path of our fathers. Let us return to it, for it is the only thing that can save us."
These two virtues, together with a real sense of justice for the ordinary person, encouraged him to innovate, but always from a cultural grounding in the England he loved. Thus, though a staunch supporter of Christian marriage, he developed justice for divorced wives and even cohabitees while legislators dithered. He also developed new law for workers’ compensation and to protect pensioners. He was a judicial activist, but only when the alternative was to leave a wrong un-righted.

Unfortunately, just as Van Gogh left a legacy of every poor painter, struggling to sell a painting, believing they are hidden geniuses, so every minor judge is convinced he is the heir to the great man, and should act accordingly.

If Mrs May and Mr Grayling need a short course of study to ‘get up to speed’, they could do worse than consider the work of two Americans, one recently deceased, the other very much alive.

There is a school of jurisprudence to which the late Ronald Dworkin and the very lively Gerry Spence belong. The American Realists teach: ‘If you want to know the Law, don't study the statutes, study the Judges.’

Gerry Spence has an astonishing litigation record. From a modest office in Wyoming, wearing a trademark western fringed jacket, he terrifies US corporations and Government alike. He has never lost a criminal trial, either as prosecutor or defender, and he last lost a civil action in 1969.

In his book Win Your Case he explains that every case is won through emotion, not cold, forensic logic as is commonly believed. Identify the emotional weak spot of the judges and the case-plan writes itself. Were this otherwise, he reasons, how could logic fail to unify the Supreme Court involving dry cases of technical tax statutes? That Court rarely agrees and regularly splits 5:4, often on a partisan basis. The answer lies in the individual prejudices of the judges.

Gerry Spence knows why and how Judges avoid the intentions of naive politicians. ‘The function of the Law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power in power.’

British judges, whose tenure of the reins of power will exceed that of any elected politician, have embraced the power afforded to them under the Human Rights Act. They break out of mere interpretation, and have become what Ronald Dworkin described as ‘deputy legislators’.

The current senior Cabinet ministers are amateurs in the field. They lack the well-furnished minds necessary to appreciate how much the legal intellectual landscape has changed.

Tom Denning acted when absolutely necessary; modern judges see social and legal activism as totally permissible and the Human Rights Act gives them the full pallet of ‘superior principles’ with which to fill in the legal blank pages with a design of their choosing.

These Judges will not readily be put back into their constitutional box.

The classic doctrine separation of powers has been compromised as explained on the Theory of Jurisprudence blog. Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:
(i) Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, ‘it’s a naked usurpation of legislative functions’).
(ii) Retrospectivity & The Rule of Law: Dworkin’s 2nd objection to judicial originality is that ‘if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event’.
The proper ambit of Judicial discretion was described by Dworkin’s intriguing ‘Hole in the Doughnut theory’.

He likened a proper degree of judicial discretion to the hole in a doughnut. Bounded by statutes, precedent, and established cultural norms, there was a degree of movement by which the hole might be stretched or compressed, but its internal area was nevertheless properly confined. What was not permissible was to break the outer ring.

The Human Rights Act has changed the classic Anglosphere model of constitutional government based upon past precedent, traditional values and a circumspect judiciary. We are now within the intellectual realm of the French Enlightenment, ‘rationalism’, and an innovative judicial activism. It is the same cultural vandalism that brought the French Revolution, the re-organisation of the calendar and the abolition of marriage.

We have given judges a ‘Big Idea’. They have principles greater than any legislated law and theirs is the open discretion determining how it shall be used. They are the keepers of the conscience, the superior estate.

If Mrs May and Mr Grayling have any sense of this state of affairs (which Brother Ivo doubts), they will address this serious problem in one of two ways:
i) They can repeal the HRA and with it the ability of judges to strike down laws by appealing to principles which trump the will of the elected parliament.
ii) They can go down the alternative American route and require a degree of scrutiny of the judges by making these self-appointed ‘deputy legislators’ subject to some democratic control, either by introducing elections or through the institution of judicial authorisation hearings.
This is constitutionally serious, but it is the consequence of having passed the Human Rights Act with an inadequate understanding of the full implications.

(Posted by Brother Ivo)


Blogger Mark In Mayenne said...

Interesting train of logic.

19 February 2013 at 07:45  
Blogger MD said...

Was a parliamentary draughtsperson responsible for Article 8? Thought some other bods banged it together after WW2

19 February 2013 at 08:04  
Blogger D. Singh said...

Br Ivo

Repealing the HRA is not going to make the slightest bit of difference. You will know that the United Kingdom and Northern Ireland are signatories to the ‘Constitution of the United States of Europe’ (the Lisbon Treaty). The preamble to the ‘Constitution’ says that the law of the European Convention on Human Rights (imported into domestic law via the HRA) is part of EU law.

There is a further sociological difficulty in all this; criminals in the EU federation know that the standards of British justice are far higher than in most other federal states.

Given that criminality risks detection, foreign criminals reason that it is better to commit crime in this country than elsewhere.

19 February 2013 at 08:19  
Blogger IanCad said...

What an excellent post Brother Ivo.

Ex-successful business owners and other professionals make lousy politicians. We need historians instead.

But please, please, please excise any flirtation with the notion of an elected judiciary from your mind.
An awful and dangerous idea.

19 February 2013 at 08:36  
Blogger David Hussell said...

Well I am not legally trained, except in a very specific, narrow area, land -use law, but I have understood the argument developed in the article above. Indeed I understood why we have encountered problems with the judges, in a more generalised sort of way of understanding, beforehand reading the article simply by knowing how our Common Law differed from Enlightenment inspired French and EU law. So why can't our MPs and Ministers and understand all this, or is it that they don't want to understand ? I believe that before signing the Lisbon Treaty they were warned by the top judges ( The Lord Chancellor ?) regarding its likely effects, and the distortions that it would introduce onto our English derived Common Law, but they chose to go ahead regardless. Are they stupid or reckless or what, I ask.

19 February 2013 at 08:38  
Blogger NamronMit said...

That was quite an illuminating article. Judges do not exist to create law, and if they attempt to do otherwise they are simply infringing upon the authority of parliament.

To remove legislative power from parliament would be remove the British way of democracy, and is something that we see being down all the time.

However, there doesn't seem much we will be able to do about it at the moment, since there seems very few within the system who are able to make it work.

19 February 2013 at 10:15  
Blogger bluedog said...

Superb post, Brother Ivo. That should keep the hyenas at bay!

19 February 2013 at 10:16  
Blogger John Chater said...

You take me back, Brother Ivo, to when I was a law student in the 1980s, at a very left-wing polytechnic. Then, judges were considered to be antediluvian traditionalists – white upper class Oxbridge types who knew nothing about the modern world. Wouldn't it be wonderful, we were taught, if only judges were more representative, more liberal and forward looking? Well, here we are…

Lord Denning, despite having committed the usually unforgivable sins of being white and a Christian, at least came from humble roots (the draper's son) and won his place at Oxford through ability. His popularity at my poly, though, came about from his appearing to be anti-establishment in that he insisted upon applying ideas of natural justice to his Court of Appeal decisions, and never mind what the actual law might say. Many of his rulings were, it should be said, overturned on appeal to the House of Lords, where Denning himself was often criticised.

One of the big things then, as now it seems, was the separation of powers and how far judges should go to 'interpret' legislation. 'Administrative law' was the term given to the area of jurisprudence where the decisions of the state could be reviewed by judges. It led to an interesting body of decisions and I remember reading an article called 'The bulwark of our liberties', which described the judiciary as performing an essential service in regulating the excesses of a legislature that could, and often does, produce very bad law.

As far as deporting foreign criminals, the judges of the past would have considered it their duty to do exactly that – the safety of the public overriding any claim to the right to a cosy family life. The problem seems to be that the judges of today have a different political stripe altogether, just as my old law lecturers hoped for.

Judges used to believe that British law was the best in the world, a view once also shared, paradoxically, by the rest of the world – but not any longer. The judiciary now sings from the human rights hymn-sheet and is far more inclined to support its imposition on national law than would previously have been so.

May and Grayling could fix the situation if they wanted to, but I suspect they have no appetite to do so because ideologically they sit on the same side as the liberal judges they pretend to criticise.

This fuss about foreign criminals is almost certainly another attempt by the morally and intellectually bankrupt Conservative Party to throw its key supporters a bone (why bring it up now). 'Tough on Europe, tough on foreign criminals, tough on immigration' – who do they think they are kidding?

19 February 2013 at 10:20  
Blogger Dreadnaught said...

Excellent article Bro Ivo.
The Judiciary has always moved and breathed in the rareified air denied to the rest of the public. However they were of course, traditionally accustomed to fulfilling the interpretation and service of the law of the land as established by Parliament The difference now of course is that Parliament has the autonomy of a Parish Council in a Country that is border-less and culturally meaningless. It has become a honey-pot for career driven political aparatchiks, ner-do-well foreign exploiters and homegrown shirkers; a wasteland of stupidity and frustration for the hard working but less fortunate tax paying majority.
I doubt that even Lewis Carroll could have envisaged some of the legal capers and pronouncements that pervade this 21C European Wonderland.

19 February 2013 at 10:36  
Blogger D. Singh said...

The one issue that Br Ivo has evaded of course is do people want to deport a man, after serving his sentence, so that he is severed from his wife and children?

Of course if he is a Spaniard or a Greek, for example, the issue does not arise – for there are no British or Italian criminals in the EU – just EU criminals.

19 February 2013 at 11:20  
Blogger non mouse said...

Interesting.... They do this by claiming that forcing them to leave the country will infringe their right to family life.

'Family life' matters to the euSSR then....
So long as they're in charge and can control it:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Beautiful. I bet they could teach Macchiaveli a thing or two!

As for the colonial government the British pretend to elect... Pretending to elect more eu officials as 'judges' won't do a thing for us.

19 February 2013 at 11:32  
Blogger Edward Spalton said...

Vaclav Klaus, theCzech President, made an interesting point about Human Rights. He said that the principle was essentially totalitarian because it was all-embracing and infinitely extendable, whether by statute or judicial activism.
It was, he said, fundamentally different from the concept of stable, civil rights, arising from a system of limited government and, of course, it is supranational in origin.

So t he ECHR which started out to achieve sensible objectives, like an independent judiciary, has developed into a lawyers' delight where Matrix Chambers can claim thousands in fees to take the case of a stroppy Muslim schoolgirl who didn't want to wear her school's uniform.

Ernest. Bevin, the post war Labour Foreign Secretary, said of th Council of Europe "if you open that Pandora's box, you don't know 'ow many Trojan ''orses will come fly in' out ". This is one of a very large herd, discharging its alien invaders and ideologies within the walls.

19 February 2013 at 12:25  
Blogger Brother Ivo said...

Brother Sigh,

You are right to think the post that further stage.To repeal the HRA is but the first step back to autonomy.

The deportation does not of course prevent family life, it simply requires the criminal and his loving spouse to conduct it in his original place of abode, often perhaps within a jurisdiction whose Judges are less squeamish about the concepts of deterrence and punishment.

19 February 2013 at 12:32  
Blogger D. Singh said...

Br Ivo

You state:

‘The deportation does not of course prevent family life, it simply requires the criminal and his loving spouse to conduct it in his original place of abode’.

Many of these former convicts are married to British citizens and their children are often British.

What you are suggesting to the authorities is that they should deport innocent British wives and children.

It is impossible for many of these British children to return to their ‘original place of abode’ as they have never been there in the first place.

19 February 2013 at 13:24  
Blogger Dreadnaught said...

Many of these former convicts are married to British citizens and their children are often British

Holding a British passport is not enough. Apart from the fact that many 'British Citizens' hold dual nationality with their country of birth, the miscreants should bear in mind the extended consequences THEY expose their families to before they embark in nefarious activities. Australia has no qualms about deporting after sentence.

Bottom line should be Tough!

19 February 2013 at 13:39  
Blogger DAD said...

Mr Singh,

Do you remember the old saying, "Hard cases make bad laws"?

What percentage are married to British wives? How many of these have children?

I.E. How many can we deport without any of you objections?

Those who fall into your category can be delt with with compassion, tose who don't can be deported.

19 February 2013 at 13:48  
Blogger D. Singh said...


'Holding a British passport is not enough.'

What then is 'enough'?


I have no objection to 'deportation'.

This debate over Article 8 is a symptom of the debate over immigration and the 1951 Convention on Refugee Status.

Are people seriously suggesting that if you are white (or even black) wife and child in such circumstances you should be deported?

19 February 2013 at 13:54  
Blogger Brother Ivo said...

Brother Singh,

Like the Judges you are falling for the same conflation of the right to family life, with the right to live where both parties choose. If the "marital bond " is stong then the wife has the choice to leave with him. Many non offenders and their families face similar options. Some of these offenders are not here lawfully in the first place.

19 February 2013 at 14:16  
Blogger D. Singh said...

Br Ivo

'If the "marital bond " is stong then the wife has the choice to leave with him.'

Why should she (and what about the children) being innocent face that choice?

Why don't you just state it baldly: 'Don't marry 'foreign' men' instead of pussyfooting around.

19 February 2013 at 14:41  
Blogger Brother Ivo said...

Brother Singh,

Absolutely not. In the controversial case which precipitated the debate the lesson is " Don't enter illegally, kill someone's child then play hard done by when the penalty includes deportation."

19 February 2013 at 14:54  
Blogger D. Singh said...

Br Ivo

‘Absolutely not. In the controversial case which precipitated the debate the lesson is " Don't enter illegally, kill someone's child then play hard done by when the penalty includes deportation."’

Nonsense – and you know it.

This debate was triggered by the loss of the people’s sovereignty, through numerous prime ministers surrendering their sovereignty by signing international agreements and incorporating their provisions into domestic law - without their express permission.

19 February 2013 at 15:10  
Blogger D. Singh said...

Br Ivo

‘He [Lord Denning] was a judicial activist, but only when the alternative was to leave a wrong un-righted.’

There is a far deeper motivation to Denning ( as he himself says in a short essay ‘The Letter Killeth’) based upon:

Mark 2:23-28: ‘The Sabbath was made for man, and not man for the Sabbath.’

And again, ‘the letter killeth but the spirit giveth life’ (Cor. 3:6).

19 February 2013 at 15:43  
Blogger Philip said...

Of the two ways Bro Ivo suggests to address this problem, i) is far preferable.
If ECHR law is necessary to be in the EU, then we know the answer to that then!

option ii) would surely bring the judicary under the control of politicians, however nice and friendly the term "democratic control" seems

19 February 2013 at 16:56  
Blogger Marie1797 said...

Mr Singh
Surely the wife British or not is guilty by association and has two choices to divorce her foreign husband on grounds of unreasonable behaviour or to leave with her husband and children?

19 February 2013 at 17:11  
Blogger DanJ0 said...

D Singh: "Why don't you just state it baldly: 'Don't marry 'foreign' men' instead of pussyfooting around."

That's the Danish approach, I believe.

19 February 2013 at 17:40  
Blogger Office of Inspector General said...

It’s a poor state of affairs Ivo. In fact, one would call the bounders pseudo legislators. Doing something they shouldn’t be doing, what !

Denning was Master of the Rolls when the Inspector was in education studying politics. He clearly remembers the great man was for something you don’t hear of now, the spirit of the law. It was insufficient to know a law, he argued. You also had to realise why a law was there in the first place. It’s very purpose. Well, that’s about it – this paragraph says so much in so few words…

19 February 2013 at 18:18  
Blogger Office of Inspector General said...

D Singh. What you are suggesting to the authorities is that they should deport innocent British wives and children.

One is a great enthusiast of collective responsibility. Thus the adult members of an individual family set up are responsible together for the conduct of each other. So, if the man, for example, has committed a crime for which eventual deportation is the desirable outcome, then the woman must share her part of the blame as she failed to exert sufficient influence on the partner. What we then have is a deportation order for two. The existence of dependant children is neither here nor there. They follow the parents.

An important consideration here is that the Man-Woman partnership be judged as how it was when the crime was committed. We don’t want crafty lawyers insisting they are now de facto separated due to a custodial sentence.

This might sound a bit harsh on Johnny Immigrant, but if the fellow wishes to live in this land, he has a particularly strong duty, greater even than the indigenous, to comply with the law. Besides, we are surely speaking of relatively few potential cases in number. Really not worth getting upset over.

19 February 2013 at 18:20  
Blogger Hauptmann Dodo said...

Inspector said ...

"An important consideration here is that the Man-Woman partnership ..."

Dear man, you are being homophobic which is so unlike you. Beware you may be accussed of bigotry too. Remember the world is diverse now.

What do you say to all undesirables being deported? And if the happen to be British citizens, we'll bannish them. We can draw up the list of undesirable behaviours later.

19 February 2013 at 19:15  
Blogger Hauptmann Dodo said...

I say, Inspector, Lord Denning would certainly support your views on race and immigrants.

In 1982 he wrote 'What Next in the Law'. In it, he suggested some members of the black community were unsuitable to serve on juries, and that immigrant groups may have had different moral standards to native Englishmen.

His views led to his *resignation*.

19 February 2013 at 19:34  
Blogger Berserker said...

In the terrorist attacks in Toulouse last year in which a Rabbi, some soldiers and three jewish children were killed, the then President (Sarkozy) deported those (who were not killed in the gun fights) connected with the atrocities back to Mali and Algeria. In this 'enlightened' approach I never heard a dicky bird from the EU about their right to family life. Sarkozy just got rid of them.

19 February 2013 at 19:45  
Blogger Office of Inspector General said...

Dodo, The Inspector has the sensation that you are pulling his unmentionable...

Berserker. The only country that obeys EU law TO THE LETTER is the UK. Every other state looks for ways around it. The second point is that if you really are a free country and you wish to preserve that freedom, you stand up to bullies. Whether it be Hitler and the NAZIs or the ECHR..

19 February 2013 at 19:54  
Blogger Roy said...

In a comment on a recent posting by either His Grace or Brother Ivo (I forget who) someone mentioned that his Russian wife thought there was more freedom of speech in Putin's Russia than there is in this country.

I wonder how many people think that we have more freedom in this country now than we did before the Human Rights Act was passed?

19 February 2013 at 20:31  
Blogger The StenchOfBrit said...

Ah yes, Lord Denning. The infamous old fartface. He should have been flogged. A man with priorities though, and good sense in knowing when to deny justice to those against whom injustice has been perpetrated.

"Just consider the course of events if their action were to proceed to trial ... If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. ... That was such an appalling vista that every sensible person would say, "It cannot be right that these actions should go any further."

19 February 2013 at 22:03  
Blogger Hauptmann Dodo said...

The Birmingham Six, StenchBrit.
Well Denning was being was biblical, after a fashion:

"You don't realize that it's better for you that one man should die for the people than for the whole nation to be destroyed.".

One man, six men, same thing.

19 February 2013 at 22:27  
Blogger Office of Inspector General said...

In support of Denning, he couldn’t believe the police could be so corrupt in the Birmingham 6 case. Nor could we then, but of course, we know better now. Hindsight is a wonderful thing, as they say...

Incidentally, why are there no police officers from that inquiry serving life sentances ?

19 February 2013 at 22:50  
Blogger Hauptmann Dodo said...

"Dodo, The Inspector has the sensation that you are pulling his unmentionable.."

What worries me most is what access point the person working the dummy is using. 'He who cannot be named', praises be heaped uon him, may get ideas.

"In support of Denning, he couldn’t believe the police could be so corrupt in the Birmingham 6 case. Nor could we then.."

Not so, Sir. Any Irishman would caution you about the corruption of the British State at that time.

Besides, as a Judge, Denning's role was to consider evidence and not the potential consequences for the State of allowing an appeal. One wonders if he was being somewhat sarcastic and cryptic in the words he chose for his judgement.

19 February 2013 at 23:08  
Blogger Hauptmann Dodo said...

Actually, hold the above.

Having reaearched it a bit more, (Wiki is my friend) it was a civil case for damages, not a criminal appeal and Lord Denning applied the principle of issue estoppel quite correctly.

19 February 2013 at 23:17  
Blogger The StenchOfBrit said...

@Inspector: "Incidentally, why are there no police officers from that inquiry serving life sentances ?"
I believe that they didn't want to go to the bother of fielding appeals so they simply didn't prosecute in the first place.
Economy in foresight, you see. It's what made the British what they are: bestial, but practical.

19 February 2013 at 23:20  
Blogger DanJ0 said...

This comment has been removed by the author.

20 February 2013 at 03:16  
Blogger G. Tingey said...

Nothing new here
I refer you to the Mansfield decision of 1772, which ruled slavery illegal/unconstitutional in England .......

Also, what has religion to do with morailty?
Nothing at all, actually.

20 February 2013 at 09:46  
Blogger Fly said...

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20 February 2013 at 17:21  
Blogger Office of Inspector General said...

Dodo, you are of course right, at that time the Irish in the UK were ‘celebrating’ nearly 60 years of anti Irish sentiment, mainly from the larger city police forces. However, Denning the decent Englishman wouldn’t or couldn’t stomach the idea that a large part of the investigating Birmingham Serious Crime Squad deserved locking up.

Stench. You too are probably right Sir. The last thing the British establishment needed was a trial of senior police officers. Lord knows what that would have uncovered…

20 February 2013 at 17:55  

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