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 lifeUnlike 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.
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.
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’).The proper ambit of Judicial discretion was described by Dworkin’s intriguing ‘Hole in the Doughnut theory’.
(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’.
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.This is constitutionally serious, but it is the consequence of having passed the Human Rights Act with an inadequate understanding of the full implications.
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.
(Posted by Brother Ivo)