The Telegraph: Wrong Again

You\’re surprised, right?

We find it extremely difficult to understand why the judges cannot appreciate that, when the Home Secretary makes a determination that an individual\’s presence is not conducive to the public good, the decision has been made after careful consideration of all the relevant facts. There should be a presumption against overturning it – even if there is some interpretation of the statutes which suggests that she did not exercise her power precisely as conferred.It is notable that Britain\’s judges appear to be alone in Europe in their determination to overturn decisions by government officials about the dangers posed by individuals suspected of involvement in terrorism. In France and in Italy, there is no question of someone whom the state wishes to deport being allowed to remain in the country because he has to be able to launch an appeal.

That\’s because we have the rule of law and they have the rule of the State.

And yes, that rule of law really is there to protect us from the State.

Yes, slightly odd that a monarchy protects the rights of its subjects better than a republic those of its citizens, but that just goes to show you that the revolution was deeper in this country than it was elsewhere. We\’ve kept the form but not the reality of absolutism, other places not so much.

34 comments on “The Telegraph: Wrong Again

  1. Sorry but they are not protecting the rights of the Queen’s subjects. The Queen’s subjects solidly want a significant number of Islamists and other assorted murderers deported. Parliament has specifically passed laws to make this possible. But a tiny number of unelected social activists who happen to be judges are making up the law as they go along to prevent the government carrying out the will of the people and of Parliament.

    By all means, Courts are there to prevent things like lynchings. But this is not mob justice. This is the careful, rule- and law-bound decision of the British government, reflecting the wishes of the voters, to remove people from this country who have no right to be here.

    The Courts do not run this country. No one elected them. They have no mandate to find whatever human rights they happen to like in whatever pathetic Euro-trash piece of paper they can dig up – even though no one else in Europe has managed to find these same rights. The Courts must be bound by the rule of law. And this is not it.

    When it comes time to take up the hemp and find a lamp post, these judges must be first.

  2. SMSF illustrates wonderfully the other distinctive view on the rule of law which exists in the UK. The view he shares sees Parliament as the guarantor of the rule of law, while the other sees the courts in that role. It’s pointed up by the response to the parliamentarians who broke Sir Fred’s injunction: if you think they were right to use parliamentary privilege in that way, then you’re in the former camp; if you think they were wrong, the latter. I think Alan Duncan’s comments on Any Questions? this week were very apposite on that specific case, and flagged up the importance of parliamentarians obeying the law.

    And on this case, Tim’s quite right. How can we tell whether a government official has obeyed all the rules to which they are rightly subject? Send it to a judge.

    Whether the judges are judging correctly is quite a different matter from whether they ought to have the jurisdiction.

  3. Philip Walker – “SMSF illustrates wonderfully the other distinctive view on the rule of law which exists in the UK. The view he shares sees Parliament as the guarantor of the rule of law, while the other sees the courts in that role.”

    No he does not. The rule of law is not in any way guaranteed by Parliament. It is only guaranteed by all three parts of the British constitution working together properly. It breaks down if one element of the Constitution, the Courts in this case, take it on themselves to seize powers that properly belong to other parts and to exercise powers they have no right to exercise. This is fairly basic political theory.

    “And on this case, Tim’s quite right. How can we tell whether a government official has obeyed all the rules to which they are rightly subject? Send it to a judge.”

    That is how it should work. But suppose you made me Supreme Judge of the UK. And I simply decided which laws I liked and which I did not as the whim took me. Regardless of what the actual law said. Would my personal opinion at any one time reflect what the law means?

    “Whether the judges are judging correctly is quite a different matter from whether they ought to have the jurisdiction.”

    I do not mind the argument that they should have jurisdiction. Nor does anyone else. The problem is where they need to lay off the Equity and focus on the Certainty. Where their proper role ends. A point they seem utterly unaware of. It is not their job to strike down any piece of legislation that offends them. It is not their job to do the job they would like the Parliament to do. It is not their job to make Britain a social democratic paradise. It is their job to interpret the law. Narrowly. They are not doing it.

    There is absolutely no reason whatsoever that this jurisdiction-hopping terrorist should have been let back into the UK or allowed to stay.

  4. First: Eurotrash law DOES have precedence because the traitors in Parliament agreed that.

    Second: Since we have an elective dictatorship in which the political scum get in and can then do what they like for the next 5 years then Judges striking down shite laws is fine. I would prefer that juries nullified wicked laws by refusing to convict regardless of evidence.A lot of thick people on juries now tho'(who may even be vetted by psychological techs and picked to ensure which way they will vote)

    Third: The other side of the coin is that MP’s should be able to defy Judges who are up their own arses as with the injunction caper.That way it works a balance.

    I wonder if the Judgeboy who threatened MPs is not a shill of some sort so that Govt can backlash and pass legislation preventing judges from overtuning bad laws. The state has long wanted that.
    What matters is any way to advance our freedom. If we want of foreign crims we need to get out of the EU and make our own laws again.

  5. I’m sorry, but I do consider this whole ‘Yuman Rights’ issue as a crock of shit
    When I was a UK resident I enjoyed certain rights because I accepted the restrictions on my own behaviour that made those possible. I regard myself as guest in this country & try to behave like one. I consider I have a right not to be tortured or imprisoned without due process by the authorities & there are certain other rights that accrue from the EU membership the UK & Spain share but that’s it. I can’t see I have a ‘right’ to be here a minute longer than I’m welcome.
    How a Tunisian acquires rights beyond those above escapes me. If the government wants him out then I can understand how the issue could be a matter of argument between the government & its electorate that the courts might be resorted to but as the electorate & the government seem very much of one mind why are the courts interfering? They’re not the Tunisian’s courts. His are in Tunisia.

  6. Mr Ecks,

    I wonder if the Judgeboy who threatened MPs is not a shill of some sort so that Govt can backlash and pass legislation preventing judges from overtuning bad laws.

    Our judges can’t overturn (assuming you mean overturn, not overtune) bad laws…

  7. SMFS,

    It is not [the judiciary’s] job to strike down any piece of legislation that offends them.

    They can’t strike down any piece of legislation unless said legislation is secondary legislation created ultra vires.

  8. Mr Eks – “No he does not. The rule of law is not in any way guaranteed by Parliament. It is only guaranteed by all three parts of the British constitution working together properly. It breaks down if one element of the Constitution, the Courts in this case, take it on themselves to seize powers that properly belong to other parts and to exercise powers they have no right to exercise. This is fairly basic political theory.”

    Spot on. Except since 1911 and 1997 the second chamber and the monarchy has been usurped of it’s checking power and effectively the Commons is able to do what it likes, hence your reference to Hailsham’s Elective Dictatorship is entirely correct.

    There is a very real fight going on based our (I mean our individual) sovereignty over that of the state. If fear it will get worse before it get’s better and I believe we are not too far off from widespread violence – certainly everyone appears to be angry and / or unhappy and reaching boiling point.

    I’ve just completed my emigration to Hong Kong. How ironic that I have more freedom in a provence of China…

    Cheers
    FAV

  9. bloke in spain:
    But equally, couldn’t you ask what right would the UK populace have to kick you out? Apart from of course that the UK police has the physical ability to do so, but then the UK police have the physical ability to torture you and imprison you without free process, but you think they shouldn’t have the right to do that.

    As for not having a right to be here a minute longer than you’re welcome – who in the UK does have a right to decide who is welcome or not? If some people think you should be here, regardless of how annoying you are, who else has a right to say that they shouldn’t.

    There’s no one authority that gives out rights or not. If you think that there are things that the government doesn’t have a right to do, even if they have the physical ability to do it, then we’re in the murky grounds of which rights should be granted, there’s no clear answer to what should be a right, and what shouldn’t be. The next step is to say that, this being a democracy, the majority has a right to enforce any law they like, but we don’t like applying that to freedom of speech issues – we do think that in some cases a minority has a right to tell the majority things it doesn’t want to hear.

  10. I must say I dislike the idea that a politician should be able to point the finger and have someone removed, and the deportee denied a chance to appeal the decision before an informed and neutral decision-maker (e.g. a judge). I guess bloke in spain’s, Mr Ecks’s and SMFS’s’s’s’s mileage-may-vary.

    foundavoice,

    There is a very real fight going on based our (I mean our individual) sovereignty over that of the state.

    I don’t know what you mean by this.

    We don’t have ‘individual sovereignty’ – well, not in terms of constitutional theory, anyway. Parliament is sovereign.

    How ironic that I have more
    freedom in a provence of China…

    Surely you jest. There’s quite a bit of concern about civil liberties in Hong Kong – freedom of expression and assembly, for example.

  11. UK liberty,

    In terms of constitutional theory we certainly have individual sovereignty. The simple distinction is that in the UK we are born sovereign and the state apparatus answers to us, whereas in many countries (say, France for example), the state is sovereign and the people answer to the state. These inalienable rights, that are our birthright, effectively translate into Common Law, whereby (as a rule of thumb) as long as we don’t harm another, damage their property and are honest in our contracts, then we are free to do what we please. That we created Parliament on top of these rights and consent to release these liberties in exchange for a uniform set of rules does not mean that Parliament is sovereign over us. It cannot be, for we can withdraw our consent – see chp 61 of the Magna Carta, which was invoked in 1997.

    As for HK, I can only speak from experience of working here on and off for over 3 years, that the only time I have ever been approached by any member of the state unwarranted is when arriving at HK airport, when they do spot checks on who one is. As long as you keep to those principles of Common Law above, you’re free to live life without interference.

    As an aside, we don’t have free assembly in the UK anymore (which is an unlawful prohibition) nor freedom of speech (again which is an unlawful prohibition). If you don’t believe me, try protesting outside Parliament without a permit or call someone a racist comment in front of a copper*.

    And you’ll find freedom of assembly and expression and criticims of China is alive and well here – although not, I concede, from career politicians. Witness the 20th anniversary of the Tianamen Square protests, when over 150,000 people turned out for a candlelight vigil.

    *For avoidance of doubt, this is not something I would do but only acts as an illustration as the right not to be offended can never override the right to free speech. The moment that you have exceptions, then you are curtailing said free speech.

  12. foundavoice, perhaps we are using different definitions of ‘sovereignty’. I am talking about legal sovereignty – supreme legislative authority. It is Parliament (or rather, the Queen-in-Parliament) that is legally sovereign.

    That we created Parliament…

    When you say “we”, do you mean barons, earls, bishops and abbots?

    … on top of these rights and consent to release these liberties in exchange for a uniform set of rules does not mean that Parliament is sovereign over us. It cannot be, for we can withdraw our consent – see chp 61 of the Magna Carta, which was invoked in 1997.

    I don’t know what you mean by, “which was invoked in 1997”.

    And I’m afraid that section has to be stretched somewhat to be applicable today.

    … If you don’t believe me, try protesting outside Parliament without a permit or call someone a racist comment in front of a copper*.

    You are teaching granny to suck eggs. I did not comment @13 on the state of liberty in the UK, which has its own problems – I criticised the notion that you are more free in Hong Kong. Try defacing a flag in a public place. Try marching with a group of 30 people without licence.

  13. To add, in case we are at cross purposes – Parliament is (/should be notwithstanding the EU arguments) the sovereign jurisdiction i.e. that no other state can make laws on its behalf, but it is not sovereign over us as it only ‘rules’ by our consent.

  14. Looks like we were talking at cross purposes!

    By ‘we’ I mean our common ancestors that forced the hand of tyrannical monarchs on more than one occassion to secure our rights. That we did it with the barons etc., makes it no less so.

    A Barons committee was formed under the Magna Carta in 1997 (‘hope I’ve got the date right off the top of my head but was certainly) in response to Blair’s unlawful reform of the House of Lords. The committee allows (actually compels) all Englishmen to revoke their allegiance to the Monarch and his apparatus (therefore Parliament, paying taxes etc) and to generally be as obstenant as possible – whilst at all times remaining peaceful. This has a lawful term and it is called ‘Lawful Rebellion’. Many are taking it up (I’m in the process). So it is very applicable today and, with a moniker of ‘ukliberty’, I’m very surprised that you would dismiss these ancient and valid rights so readily.

    I take your point on the UK. As for HK, you’re right, of course, I cannot pi$$ on the state. However, no-one is prying in to me anywhere near on the scale I have experienced in the UK. The state remembers (here) that it is not there to serve. Crikey, even when the Tax Office has a handy online calculator that *proactively* informs you the best way to avoid tax!
    Cheers
    FAV

    PS. I would love to know how one does that quotey-thing!

  15. foundavoice,

    … it is not sovereign over us as it only ‘rules’ by our consent.

    You are talking about de facto sovereignty, then – in other words, if we rebelled we would be sovereign if we won. The same can be said of any nation’s people and I’m not sure where that gets us.

    The fact remains that, contrary to your claim in this thread, the Queen-in-Parliament is legally sovereign, and can make or unmake any law (absent question of conflict with the rule of law, as some judges have suggested).

    “It is a fundamental principle with the English lawyers, that Parliament can do everything except make a woman a man, or a man a woman.” – de Lolme sums it up.

  16. “The fact remains that, contrary to your claim in this thread, the Queen-in-Parliament is legally sovereign, and can make or unmake any law”

    That is simply not true. Check the Bill of Rights – there are clear limits. You appear to be confusing lawful with legal.

  17. “You are talking about de facto sovereignty, then – in other words, if we rebelled we would be sovereign if we won. The same can be said of any nation’s people and I’m not sure where that gets us”

    No. The monarchy was allowed to continue under the consent of the people (check the Declaration of Rights) hence why we have a Constitutional Monarchy. King’s John, Charles and Henry II all found themselves disposed / neutered when they went contrary to to Alfred’s Law, resulting in a strengthening in law of our birthrights through the Magna Carta and the Declaration of Rights, the introduction of an expanded King’s Coranation Oath etc.

  18. If you right-click the page and click View Source, then search for blockquote, you will see how it is done.

    Sorry for any confusion, I wasn’t particularly clear.

  19. foundavoice,

    This has a lawful term and it is called ‘Lawful Rebellion’. Many are taking it up (I’m in the process). So it is very applicable today and, with a moniker of ‘ukliberty’, I’m very surprised that you would dismiss these ancient and valid rights so readily.

    Sorry, but I think the Lawful Rebellion lot are cranks (and a few are fraudsters), frankly, while remaining fascinated (in a car-crash way) to see how it turns out.

    I note a lack of successes so far.

    King’s John, Charles and Henry II all found themselves disposed / neutered when they went contrary to to Alfred’s Law, resulting in a strengthening in law of our birthrights through the Magna Carta and the Declaration of Rights, the introduction of an expanded King’s Coranation Oath etc.

    Magna Carta 1215 came about because of the force used by the barons, not because of the law – de facto power, not legal power (the distinction seems important). There is some irony in that you are praying in aid a document King John was forced to sign – you would undoubtedly hold invalid a document you were forced to sign.

    And, um, wasn’t it revoked three months later?

    @20 you are arguing with eminent constitutional theorists such as Blackstone and Dicey – or, if you want a more recent authority, try Lord Bingham.

  20. Looks like we will have to agree to disagree but I will leave with three parting points:

    1. Blackstone’s original work (esp. 3rd edition) clearly lays it out as I have put it.

    2. Regardless of King John’s acquiesence, subsequent Monarch’s under oath have upheld it and validated it. William and Mary of Orange had more freedom to do so than any other and they accepted.

    3. Regardless of whether or not you believe us cranks, fraudsters, etc., the fact remains that in 2001 (I rechecked) a Baron’s Committee was lawfully formed and Lawful Rebellion is (by definition) Lawful. No statute (i.e. by Parliament) or law (i.e. Common Law) exists with supremacy over it.

    Cheers
    FAV

  21. Oh alright:

    1. Absolute Rights
    “The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.” – William Blackstone, Commentaries on the Laws of England

    2. See any history book – willful acceptance by Monarchs with a genuine ability to say no.

    3. Magna Carta – Unamendable.
    Lord Renton: My Lords, before the noble Earl sits down, perhaps I may mention one point in relation to his fascinating speech. He suggested that we should amend Magna Carta. We cannot do that. Magna Carta was formulated before we ever had a Parliament. All that we can do is to amend that legislation which, in later years when we did have a Parliament, implemented Magna Carta.

    Earl Russell: My Lords, the noble Lord is of course correct in relation to present legislation. However, 17th century Parliaments treated Magna Carta, in its 1229 version, as being an Act of Parliament. I spoke loosely and I hope that the noble Lord will forgive me.

    http://hansard.millbanksystems.com/lords/2000/jul/20/football-disorder-bill#column_1208

  22. foundavoice,

    1. Blackstone’s original work (esp. 3rd edition) clearly lays it out as I have put it.

    ISTM quite the contrary.

    THE power and jurifdiction of parliament, fays fir Edward Coke c, is fo tranfcendent and abfolute, that it cannot be confined, either for caufes or perfons, within any bounds. And of this high court he adds, it may be truly faid “fi antiquitatem fpectes, “eft vetuftiffima; fi dignitatem, eft honoratiffima ; fi juridictionem, “eft capaciffima.” It hath fovereign and uncontrollable authority in making, confirming, enlarging, reftraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all poffible denominations, ecclefiaftical, or temporal, civil, military, maritime, or criminal : the being the place where that abfolute depotice power, which muft in all governments refide fomewhere, is entrufted by the conftitution of thefe kingdoms. …

    – Blackstone, Commentaries on the Laws of England Book One, Chapter Two.

    Blackstone goes on quite a bit about the absolute power of Parliament, and IIRC actually warns us that because it has absolute power it must exercise great care, as should we in electing our representatives.

    … 3. Regardless of whether or not you believe us cranks, fraudsters, etc., the fact remains that in 2001 (I rechecked) a Baron’s Committee was lawfully formed and Lawful Rebellion is (by definition) Lawful. No statute (i.e. by Parliament) or law (i.e. Common Law) exists with supremacy over it.

    Well, you claim it is lawful. Look, AFAIK so-called “freemen” or “lawful rebels” have yet to persuade the courts, based on “lawful rebellion”, that they do not owe money for council tax, TV licence or driving offence penalties.

  23. foundavoice, I must say I am not claiming you are a crank, and I’m certainly not claiming you are a fraudster, nor that all “lawful rebels” are fraudsters. Just that, with regard to the latter, I have seen more than a few posts from “lawful rebels” and “freemen” where they admit to having exceeded speed limits or not paying back overdrafts and suchlike and this appears to be their reason for turning to the Magna Carta, rather than having a principled position opposing the infringements on our ‘inalienable’ rights by governments and bureaucrats.

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