But this is why we have judges!

Perhaps Ed Balls, the Children’s Secretary at the time, should have given Miss Shoesmith more of a chance to put her case (although it isn’t true that she was denied a hearing altogether: she was able to put her arguments to Haringey Council, the body that fired her). But, as Mr Balls said on Friday, it wouldn’t have made any difference: the case against her was just too overwhelming. Ministers, he argued, must have the power to make decisions that they believe to be in the public interest promptly and effectively, without having the judges weigh in a couple of years later and substitute their own judgment.

What the judges did is a judgment, of course, that\’s what judges issue.

But in the other sense of the word, \”using their judgment\”, that\’s exactly what Balls did and the judges didn\’t. And that\’s why we have this whole law thing, courts and all.

Ministers should not be able to impose their judgment upon the rest of us: they must act within the structure of the laws that they themselves are responsible for.

This is known as \”the rule of law\” and is one of those things that we English pretty much invented. The man in power doesn\’t get to do what he likes (or thinks in his judgment is in the public interest), but only what is already written down that he is allowed to do. He must, although he be elected and ever so high and mighty, follow the same procedures as the rest of us.

For example, they may not drive and talk on a mobile phone at the same time, may not claim more expenses than the system allows, may not speed, may not attempt to pervert the course of justice, may not perjure themselves, to give examples of what Ministers have been found guilty of/suspected of in recent decades.

In the same manner a Minister cannot fire someone in violation of the Common Law right to natural justice: just as no other employer in the country is allowed to do so. To say nothing of the web of law which entangles any employer trying to fire someone even while honouring that right.

Don\’t forget, this law stuff, this civil liberties stuff, the whole set of assumptions about public hearings, assumptions of innocence, juries, double jeopardy, the rule of law. The are not quaint archaic hangovers, they are not there just to hamper the pursuit of the guilty.

They are there to protect us, the citizenry, from the politicians, the people wielding the power of the State.

N\’ Balls can go off teabagging elsewhere for that\’s the way it has to remain if we are to continue to be free people in a free country.

8 thoughts on “But this is why we have judges!”

  1. Hear, hear. This is perhaps a political opportunity for the coalition to roll back employment law a bit, using public outrage to general benefit. But it seem unlikely that they can see the big picture, so we’ll just get populist nonsense about judges being out-of-touch with public feeling.

  2. Surreptitious Evil

    It is entirely reasonable that, to sack somebody, an organisation must have both a reason and to follow its clear internal procedures. I’m not denying that Haringey had a reason – it is clear that there were significant problems in the departments Shoesmith was responsible for. But “because Ed Balls said so” is hardly following any council’s written disciplinary procedures.

    Should she have been sacked? Probably. Should she have been immediately suspended, pending formal disciplinary? Absolutely. Should she have won this case? Clearly.

    It is not “employment law” that is at fault – the statutory requirement for internal disciplinary procedures to follow the ACAS guidelines has gone. It is that some organisations choose to make it, because of their internal culture, difficult to sack people who are incompetent, as opposed to people who offend in other ways.

  3. So Much For Subtlety

    If the law does not allow the immediate sacking of Shoesmith for the Baby P disaster, without any compensation, then the law is an ass and it needs to be re-written.

    However I expect the law *does* allow the sacking of Shoesmith, it is just that some judges decided they did not like this law and so re-interpreted it to suit their prejudices.

    And we all are going to be paying for it.

  4. There was a time when people at the head of an organisation that had failed so miserably would have done the decent thing and resigned*. The one possible exception being that they had just been brought in to sort it out and hadn’t had enough time.

    If people in these positions no longer accept the responsibility that goes with being the head of an organisation then a 50% pay cut across the board, a change of titles that doesn’t imply they have any responsibility, removal of all the trappings of power (nice office, secretary etc) and a shorter contract for firing them is needed.

    *Was Lord Carrington the last person to resign as a matter of principle?

    PS Yes I am aware that I have probably put on my gold tinted history glasses this morning

    PPS The thought of being able to stick it Balls might tempt me to swallow my principles

  5. OK, maybe the letter of the law was not followed. So, let’s have a do-over, dot all the i’s and cross all the t’s, and then sack her.

    Except, whoops, no, she’s going to end up with a million quid of taxpayers’ money. Justice is served!

    Surreptitious Evil: don’t say ‘swallow’, ‘stick’ and ‘Balls’ in the same sentence.

  6. I have little doubt that it was the right decision to sack her and if the correct procedures had been followed the result would have been the same. However not following the law leads to the perverse result that someone richly deserving of dismissal will receive more compensation than most could countenance.

  7. SMFS,

    However I expect the law *does* allow the sacking of Shoesmith, it is just that some judges decided they did not like this law and so re-interpreted it to suit their prejudices.

    Well, I’m beginning to feel familiar with your prejudices.

    Why not read the judgement?

    http://www.bailii.org/ew/cases/EWCA/Civ/2011/642.html

    It springs to mind that the reason the newspapers rarely link to judgements is that people might read them and say, “do you know, those judges might just have a point”.

  8. Surreptitious Evil

    David,

    You appear to be confusing me with Simon.

    SMFS

    However I expect the law *does* allow the sacking of Shoesmith, it is just that some judges decided they did not like this law and so re-interpreted it to suit their prejudices.

    Indeed, the law does allow for the sacking of Shoesmith. As, I expect do Haringey Council disciplinary procedures. What the latter don’t allow for, and the former requires you to abide by the latter, is the “immediate sacking”.

    Immediate suspension – obviously, (3 days?) notice, a disciplinary meeting with union representation, she gets to make her case and then you get to sack her. She gets to appeal, of course, and then you get to sack her again. Abide by the rules and she has no case at tribunal. They didn’t, therefore she did, therefore we’re all unhappy.

    Unsurprised, certainly, given the overtly outstanding administrative competence of the previous regime. But unhappy.

Leave a Reply

Your email address will not be published. Required fields are marked *