Err, yes, this is the point of a Supreme Court

There is, however, one great benefit from this decision: perhaps for the first time, the judges’ way of thinking has been made absolutely clear. They think it is for the Supreme Court to decide when the elected government doesn’t know what it’s doing, and then to correct its legislative blunders. Lord Brown does not spell out the dangerous implications for democracy of that outlook, but they are there for all to see in his blistering dissent.

Let us imagine, go on, just pretend for a moment, that government is made up of slime ridden panderers to the lowest common denominator who will do absolutely anything to remain ensconced on the throne of power.

I know, tough to imagine, isn\’t it?

In such a system it\’s possible to posit that there will be, over here say, lofty declarations about what are the rights of man. Might be the right to healthcare or a job, might be to free speech or a fair trial, depends on which constituency the slimeballs were reaching out to when they spouted the nonsense.

We can also imagine the mob, that democracy, desiring to over rise these rules in certain circumstances. Perhaps, as was roughly true at one time, a policeman has been murdered on duty so someone will swing for it: doesn\’t matter so much who but someone must. Perhaps the mob has become inflamed about paeophiles so anyone with a stolen credit card on a server that hosts kiddie porn must be hounded into suicide.

Maybe we\’ve promised that people who are Brits have a right to a family life, then the mob asserts that darkies shouldn\’t have that right: onor should Brits who marry darkies.

The Supreme Court, however much it might fail in such things as protecting the rights of not policeman murderers to not be hanged, is at least there for the purpose of making sure that new laws do not over ride those rights promised in other earlier laws. And even, if we were to do such a thing as ssingle out certain laws as being more important than others, make sure that more minor laws do not over ride rights granted in those more major.

That\’s actually what a Supreme Court is for.

The Human Rights Act, passed in 1998, greatly increased their powers – and their confidence – to strike down laws passed by the elected government. Judges and their supporters hotly deny that they now regularly usurp powers that properly belong to Parliament – but last week, a decision by the Supreme Court indicated that, in fact, that’s exactly what they do.

Complaining about a Supreme Court doing what a Supreme Court is supposed to do is very odd indeed.

 

17 thoughts on “Err, yes, this is the point of a Supreme Court”

  1. So Much For Subtlety

    Someone said: “They think it is for the Supreme Court to decide when the elected government doesn’t know what it’s doing, and then to correct its legislative blunders. ”

    TW replied: “The Supreme Court, …., is at least there for the purpose of making sure that new laws do not over ride those rights promised in other earlier laws. ”

    Sure. But you cannot draw that conclusion from that first sentence. The author of that first sentence is not objecting to the idea that the Courts apply the laws as they stand. He is objecting to the idea that the Judges can make a moral judgement and substitute their own values for the law. You may be right, but you have still missed the basic problem. Because, at least if judges were ignoring those earlier laws, they would be applying some laws. But they are not. They are deciding according to their whims and fancies. That is violently opposed to the very idea of the Rule of Law.

    Although I also object to the violence done to Britain’s Constitution by asserting that some earlier laws have such priority that later laws cannot over-ride them. If we wanted to. No Parliament should be allowed to bind all of its successors.

  2. I have to say I fully agree with this post. The point of an independent judiciary is partially to prevent exactly the kind of brute majoritarianism that overrides pluralist and individualist protections. Bravo, Tim.

  3. SMFS:
    1) The law explicitly guarantees a right to family life. If your completely lawful partner isn’t allowed in the country, that right is being breached. There’s no moral judgement being made here, just an evaluation of the facts.

    2) no Parliament does have the right to bind its successors. If the government wants to repeal the HRA or the Bill of Rights or the European Communities Act, all it needs to do is have a vote to repeal them, in exactly the same way as it can vote to pass or repeal any other laws (it’s not equivalent to the US or Australian constitutions where a far more onerous process than regular legislation must be followed).

    Myles (and indeed, Tim): well said.

  4. A Right is a law which limits the Stae from interfering with a freedom we already have, it does nott herefore confer a freedom on an individual.

    If anything a Right, whilst limiting the extent, confers a freedom on the State to interfere in individual freedom.

    It is not up to a Court, Supreme or otherwise, to keep the slimeballs in Government in check, that is the job of the electorate in a Parliamentary Democracy

  5. I wish talker-of-pseudo-constitutional-nonsense at 4 would use a different name for the purposes of this blog. How the fuck is “banning the state from restricting individual freedom” (which is *exactly* what the law being discussed here did) anything other than “conferring a freedom on an individual”?

    Relatedly, the electorate clearly *don’t* keep the slimeballs in government in check, as you’d expect given that half of them are even more stupid than the average person, so whether or not it’s nominally their job is moot.

  6. Incidentally, immigration rules are statements of intent about how the Home Secretary will execute her powers. So, not much to do with law made by Parliament, then.

  7. So Much For Subtlety

    3 john b // Oct 16, 2011 at 10:03 am

    “1) The law explicitly guarantees a right to family life. If your completely lawful partner isn’t allowed in the country, that right is being breached. There’s no moral judgement being made here, just an evaluation of the facts.”

    Sure. But notice two things. First is that by requiring someone to go to University College Dublin instead of the University of London, we are not depriving them of a family life. Just a shared life in Britain. Just as sending someone back to Peru does not mean he cannot take his lover and his cat with him. The Courts, of course, disagree. Family life seems to mean life in Britain. Which the law does not insist on. They are inventing rules.

    The second is that Article 8 is a little longer than the bit you quote. Says in full:

    Article 8 Right to respect for private and family life

    1Everyone has the right to respect for his private and family life, his home and his correspondence.

    2There 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.

    So why it is unreasonable to deport a murderer back to Italy given it is in accordance with the law, and in necessary for public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others? This second bit is so wide that any Parliament could drive anything through the loophole. As such it is typical of European laws which mean nothing in practice. But of course our judges ignore the law when it suits their own personal agendas.

    “2) no Parliament does have the right to bind its successors. If the government wants to repeal the HRA or the Bill of Rights or the European Communities Act, all it needs to do is have a vote to repeal them, in exactly the same way as it can vote to pass or repeal any other laws (it’s not equivalent to the US or Australian constitutions where a far more onerous process than regular legislation must be followed).”

    I am not sure that is true any more. Given our judge’s habit of striking down laws out of the good opinion of all of mankind. But why even repeal the law? It is normal for a newer law to cover areas older laws do without specifically striking them down. The newer law should take precedence, no? But it doesn’t when the judges don’t like it.

    6 ukliberty – “Read the judgement and tell me about “whims and fancies”:”

    I read the judgment and it is full of whims and fancies. Specifically the judges agreed that the purpose of the law was lawful and good. They decided that they did not think the pressing social need was pressing enough and so struck it down. That is a personal judgment I do not think it is their job to make. As Brown agreed:

    91. The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgment. Unless demonstrably wrong, this judgment should be rather for government than for the courts.

    Yet his colleagues felt that it was a decision for them to make. Not for the government.

    “You do come out with some total bollocks sometimes.”

    And yet I am right.

  8. SMFS,

    I am not sure that is true any more. Given our judge’s habit of striking down laws out of the good opinion of all of mankind.

    They can’t ‘strike down’ primary legislation. That kind of claim of yours makes me think you don’t know what you’re talking about.

  9. The idea that a right to a family life should stop someone being deported is just stupid. Their family can move with them. Its possible to have a family life somewhere else. I do.

    The whole point of a right to a family life, is to stop politicians deciding who can and can’t get married or have children.

  10. The idea that a right to a family life should stop someone being deported is just stupid. Their family can move with them. Its possible to have a family life somewhere else. I do.

    Hmm. That isn’t literally true though, is it?

    Let’s say I’m gay and my boyfriend’s from Iran, and we’ve been living together for five years. If, for whatever reason, the government deports him, we’re not exactly going to get to have a family life in Iran, are we? That’s an extreme one, but the same would be true even if my boyfriend were American – the US doesn’t grant visas for gay partners, so if he’s kicked out, I’ve got no right to go there and join him.

    As always, the issue should be about weighing the right against the harm done. If my imaginary American boyfriend had overstayed his student visa for six months before we tried to apply for a partner visa, but was otherwise blameless, then you’d have to be a bit of an awful bastard to suggest the harm done outweighed our right to family life. On the other hand, if said chap had been out gang-raping and slitting people’s throats, then of course you’d say sending him home was justified.

    The basic point of the HRA and the judiciary’s role here is that – when the target-driven immigration service and populist-fear-driven politicians do something as blatantly unfair as sending the bloke home in the first example, it can be overruled (meanwhile, in the second case, the courts would still send him home).

  11. john b

    I agree with your distinction between the two extremes. Even if your hypothetical boyfriend was Iranian however, in the latter case his right to a family life shouldn’t keep him here.

    Incidentally, I was quite homophobic in my youth, and the thing that really changed my mind was when a gay classmate started seeing an Indonesian who explained to me the reality of being gay and living in Indonesia. I have been a supporter of gay marriage ever since.

  12. Serf: I 100% agree (as do the courts) that the family life provision shouldn’t protect our hypothetical Iranian gang-rapist.

    However, if the Iranian government were proposing to execute him on his return home for things that were nothing to do with the gang-rape (whether that’s being gay, being a dissident, or whatever) and which were legal in the UK, I’m not wholly happy with sending him back to certain death. Or letting him out in the UK community, obviously. A DIFFICULT ONE.

  13. john b @13, quite.

    ISTM worth noting that some 40,000 people are deported a year (figure includes involuntary and voluntary, excludes border control). We only hear about the ‘difficult’ cases.

  14. As a Yankee I am somewhat ignorant of British laws. But I’ll tell you how it works over here, or at least how I think it should work.

    We have a constitution that is rather difficult to change, as was stated in a previous comment. As I recall, one needs to get both houses of Congress to agree, and then 2/3 of the states. So we’ve only had 27 amendments over the last 200 years.

    We do have minority rights built into the constitution, such as free speech, religion, etc. The reason people support these minority rights is because everyone is a minority of some kind, and so they are concerned that without these rights, they will lose their own minority rights. But these rights are enshrined in our difficult-to-change constitution because the majority would otherwise trample on minority rights in the emotions of the present moment. Thus, we can have a constitution that is both democratic and supports minority rights.

    To get back to this discussion, I do get rather peeved when judges decide the constitution isn’t changing fast enough and thus try to shoehorn their feelings of justice into the constitution when it isn’t really there. But I don’t understand why it matters if a judge does that in the UK, since Parliament can easily change it back again. I think it makes sense for such broad rules to be hard to change, such as a 2/3 requirement, but it sounds like that isn’t the case in Britain?

  15. Mark @15, the UK does not have a codified constitution, we don’t have a Bill of Rights with such a special legal status, we don’t in this context require quorums, we don’t have the same degree of ‘separation of powers’ and our Supreme Court cannot override law made by Parliament.

    (Incidentally, I happen to prefer the wording of your Bill of Rights to our Human Rights Act.)

    The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions.

    Parliament has the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament (Dicey)

    But judicial review of delegated legislation and decisions made by public authorities is nothing new.

    As I see it, one of the biggest problems with the human rights ‘debate’ in the UK (such as it is) is that some commentators, such as Alisdair Palmer, the journalist who wrote the article, who is the Sunday Telegraph’s Public Policy Editor, are incompetent. Inevitably, then, their polemics end up confusing and misleading people – and as a result making some people angry.

    The Human Rights Act says,

    It is unlawful for a public authority to act in a way which is incompatible with a Convention right. …

    [this] does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

    The Act gives the courts this duty:

    So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

    It is only if the court cannot do this that other measures become available to it.

    Setting aside for now any question arising from the European Communities Act 1972*, the court cannot strike out or overrule an Act of Parliament (or ‘primary legislation’). All the court can do is make a ‘declaration of incompatibility’. It is then a matter for legislators.

    Unless explicitly prohibited from doing so by primary legislation the court can overrule or strike out delegated legislation because such legislation has not been made by Parliament but by the public authority or person to whom Parliament delegated power. However, the court will tend to be reluctant to do that – certainly it seems to me the judiciary are more wary of being seen to interfere with political issues than politicians in judicial issues.

    In the particular case(s) that Palmer wrote about, the courts (the Court of Appeal and, later, the Supreme Court upholding this decision) overruled the effect of a particular Immigration Rule in two particular instances – the courts did not strike out the Rule altogether, but left it up to the Home Secretary what should be done with the Rule.

    Immigration Rules are made by the Home Secretary, not Parliament – in practice, Parliament has little if anything to do with them (Parliament can make them itself, if it wants). The Home Secretary will have put a copy of the Rules in Parliament (‘laid them before Parliament’) – that’s pretty much it. The Supreme Court said that the Rules do not even have the status of delegated legislation.

    In short, then, Parliament gave the courts the job of examining such rules against the Human Rights Act and the power of overruling them when found they are found to be infringing.

    Palmer does not appear to understand any of this.

    * because that’s where it gets complicated and controversial and isn’t particularly pertinent to the thread

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