Constitutional conundrums

Baroness Deech

I have two thoughts on the ripples spreading from the granting of injunctions to protect the privacy of celebrities.  One is that the judiciary should not be subjected to pressure by politicians to interpret the law in a certain way, except through the passage of new legislation for them to apply.  Parliament makes the law (in the situation under consideration, the Human Rights Act) with due attention to its wording: it is then for the judges to apply and interpret it.  There has to be a separation between those who pass the law and those who apply it to the citizens. That is part of the Rule of Law.  Otherwise the government of the day could bend laws already in force to suit current needs, which is what some politicians appear to be attempting right now.  If Parliament feels that the existing law is inadequate, then it is free to change it in the usual way.  I have said before that in my view it is well nigh impossible to draft any law that would achieve a detailed and predictable balancing of the right to privacy and the right to free speech.  It will always be a question of difficult judgment in the circumstances.

My other thought is the about the way that constitutional changes are playing themselves out over the years.  Who would have thought that the European Convention on Human Rights would have caused so much trouble and spread itself into so many unlikely areas?  This is in part because it is crafted for continental European legal systems.  Our common law and statutes had already been shaped by judges over the centuries to take account of much of what we now call human rights.Therefore the introduction of an overarching act was bound to cause overbalancing towards the individual’s claims. It is a great pity that our law lords are no longer sitting in Parliament and that new supreme court justices will not be members of the House ipso facto.  We benefit greatly from those retired judges who are there; their experience is brought to bear on the bills in passage, ensuring more clarity of the effect of legislation.  The collective wisdom of the House would be diminished if law lords and senior retired judges were evicted, along with everybody else, under plans to replace the House by elected politicians.

6 comments for “Constitutional conundrums

  1. MilesJSD
    25/05/2011 at 1:37 pm

    “Oh what a tangled knot”
    your ancestors and contemporaries have weaved
    and do still try tocompound, add to and tighten
    “since first they practised to deceive”.

    The Primary Need, now most important and most urgent, of Earth-Lifesupports and Civilisational-Sustainworthiness, is not for ‘Rights’

    nor for an Anciently-Perfect-Constitution, nor for “Collective Wisdom”,

    nor for “Separation of the few thousands of Top-Dogs from the several hundreds of thousands of Mere-Middle-Dogs, who privilege, or duty, is to command, ration, control, and enslave the several millions of Lower and Underclass Dogs.

    Before we and our governance can arrive at a sustainworthy long-term strategy, we have to become willing and able to Method III-Cooperatively draw up, and keep publishing up-to-date, Exhaustive Lists of All Essential Needs & Affordable Hows –
    which of necessity will include Listing the Lesser-Essential and the Less-Affordable needs, wants, desires and dreams.

    The Big-Fact now is that the traditionally-entrenched Property, Power, and Money Pyramid-Civilisation,
    and therein lockstepped Constitutions, Laws, Practices, and ‘Privacies’ (the latter in truth being Cowardly-Secrecies & Greedy-Hoardings)
    is Obsolete,

    and needs to be replaced by affordable Response-ability and Responsibility of both People and Governments.
    Are you a healthy human individual ?
    Yes ?
    Then after all Workplace expenses have been met, why do you still “have to have, to take home in your private pocket”, and likewise “have to ‘award’ to certain others for them to take home”, more than one human-living out of the Common Earth Purse ?

    What do you need two, three, four, five, and more and more, human-livings for ?

    You will never be even two human beings; you are only one; and you need only one human-living;

    you have no ‘right’ to increase that to more than one human-living;

    and that other blind pseudo-wisdom telling you that you are “earning” and “worth” more than the ordinary-worker, more than two ordinary workers, more than three, four, five, a hundred ordinary or “lesser” workers
    and that therefore in both the Workplace and the Lifeplace you are a many-times-superior human-being to both Middle-Class and Working-cum-Underclass Peoples,
    and are entitled to blame the Consumption and Cornering of One-and-a Half Earths’ Resources on the billions-overstrong-booming Working and Underclass Populations –

    is literally evil-poppycock.
    You need to support Radical Reform to make not just all Workplaces sustainworthy and budgeting-within-this Earth’s-Means, but all Lifestyles too, whatsoever.

    I am not “telling you your job”;

    I am submitting the Survival-Need of both the Earth and the Human-race.

    1337 25 JSDM

  2. Gareth Howell
    25/05/2011 at 2:15 pm

    One is that the judiciary should not be subjected to pressure by politicians to interpret the law in a certain way,

    One of the tasks of the constituency MP to stand up for somebody so that it should be!

    If Parliament feels that the existing law is inadequate
    Not inadequate but obsolescent in this exceptional case. What the noble baroness says is right.

    To the rest I say “Oh!”

  3. danfilson
    26/05/2011 at 4:50 pm

    When the law gets into a mess like this it is time to legislate – judge-made law can only go so far. But how to sort out the mess is another matter. We need a law of privacy which enables people – however famous – to go about their private lives in privacy however much they may be “of interest to the public”. If however there are elements of their essentially private behaviour which have more widespread implications, for example showing themselves to be public prurients but private humbugs, I would argue that knowledge as being “in the public interest”. Celebrities who have no role in public affairs, such as footballers, should have a presumption of being privacy UNLESS they set themselves up as role models.

    Financial shenanigans should be exposed. Arguably a weakness of French law is that it protects politicians too much. A free press can defend us, as the expenses scandal revealed (albeit the Telegraph had an agenda in doing so).

    Separate from whether there should be a privacy law is what to do about Twitter and the like. I have no idea. All I believe is that an injunction not served upon an individual can have no effect upon him and he is free to express his opinions, or pass on those of others, provided he believes them not to be false such that they would constitute libels. But it cannot be possible to sue for libel 65,000 or whatever twitterers.

    • Twm O'r Nant
      28/05/2011 at 8:25 pm

      Celebrities who have no role in public affairs,

      Chance would be a fine thing, if you could be 100% certain of winning.

  4. MilesJSD
    27/05/2011 at 9:52 pm

    Dan Filson,
    I appreciate such good-intgention as you appear to have; but

    Just why does the overpaid and underperforming Governance ‘community’,
    that you evidently strongly support,

    “need a law of privacy which enables people- however famous – to go about their private lives in privacy” ?

    Not just those above you on the “pay scale” lumber along taking more than the naturally-rightful one-human-living from the Common Purse
    I’ll guess that you too do, and millions like you, take more than one-human-living;

    I have previously identified such over-drawing as being cowardly and spendthrift secrecy, not ‘a private right’.

    Such over-consumption, destruction and extinction of Lifesupports, via the Coinage that tokens them, can not, by any honest-argumentation putting all of the facts and factors on the Table, nor by any sober stretch of the imagination, be called a “right”, a “right to privacy”, nor an “earned and justifiable private- living”.

    Evidently the governance-“community” you support has longstandingly been classifiable as indulging in both “public-prurience and private humbug” (your own wording), which you say to be “in the public interest”
    when to be quite clear such “essentially private behaviour” is destructive, and very much “against the Public Interest”.
    If such governance-level people continue to avoid being
    1. Clear
    2. Charitable
    3. Self-corrective
    then they too will have to stand “exposed”
    and I think that would include you too, Dan, amongst the “financial-shenanigans” you identify and rail against.

    The latter ‘railing’ is quite right, but the trouble in such posts, yours included , is that it is being done for the Wrong Reasons.

    That you are by no means alone, nor in a minor-community, is of no help, either.

    Those who have long been drawing-up and entrenching Bills of Rights, before exhaustively and public-inclusively Listing All Human Needs and Affordable-Hows thereto, for the longest-term Future that the Human Race very desperately needs, are in Dominant numbers and Power-leverages, and are commensurately many times more culpable than you, I, and many millions & billions of lower-paid people put together.

    That you are a ‘smaller-fish-in-the-tank’, makes you neither ‘guiltless’ nor ‘trustworthy’ for leadership
    nor for comment such as the above which evidently you published “2650pm 26/05/2011”.

    And let me pre-empt any “Tu Quoque” smokescreening-rebuttal attempt, such as that
    “JSDM is ‘in the same boat, by his own above admission drawing more than billions of people’ ”
    by pointing out that “size matters”:
    I draw only one human-living.

    I claim no privacy privilege other than an inside lock on bathroom and lavatory doors, and on my dwelling when I am working, self-healing, feeding or sleeping;
    and right-qualified staff to attend me when I fall sick or at the last am on my terminal-bed.

    2152 F2705 JSDM.

  5. Matt
    30/05/2011 at 10:34 am

    Baroness Deech ~

    I trust you will be pushing for an amendment to give retired judges an automatic right to a seat in the second chamber, when the HOL Reform Bill debates get underway??

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