I returned recently from a legal conference in S Africa about the Rule of Law, attended by equal numbers of British and S African lawyers and judges. The legal profession in S Africa is of the highest quality; even at the height of apartheid their judges bravely defended human rights (although not always). British law students study at the outset of their course the S African judgment in Harris v Donges, as an illustration of this. Their lawyers distinguished themselves by defending those who fell foul of the regime, and many S African lawyers came to the UK, either because they were forced out or voluntarily, and became stars of our own system, e.g. Sydney Kentridge and Lord Hoffmann. Respect for law and the new constitution offer great hope for S Africa in the future. There remain difficulties, which were well explored in this conference, organised by the Middle Temple. The judicial appointments system was described by some of the S African delegates as over compensating for the discrimination against black lawyers of the old regime, while others said that it was much better and fairer now. British delegates voiced parallel fears, that placing judicial appointments in the hands of a commission subject to ultimate ministerial approbation also carries risks. Judicial review was seen to be used vigorously in both countries to challenge government decisions. The legal professions of both countries see their independence threatened by the creation of super-regulators appointed by government. The spirit of the conference was a tribute to Lord Bingham, whose insistence on the Rule of Law did much in his lifetime to uphold human rights and protect the independence of lawyers. Lawyers are never popular until they are needed!
Oh! This is deep?
I found this link on ‘Harris v Dönges’ considered by some as constitution politics rather than constitution law? The case cites the ‘Statute of Westminster’. The ‘League of Nations Photo Archive’ says of the Statute:
“The British Parliament passed the Statute of Westminster which gave legal force to the new policies adopted by the Dominions during the Imperial Conference of 1926. Britain and the Dominions became autonomous communities within the British Empire, equal in status, though united by a common allegiance to the Crown and as associated members of the British Commonwealth of Nations.”
The League of Nations formally ceased to exist in 1946 to be replaced by the United Nations.
Ref: Parliamentary Sovereignty;
Entrenching Legislation: Challenges to Orthodox Position
Harris v Dönges (SA Minister of the Interior, 1952); Page 41
http://www.oup.com/uk/orc/bin/9780199290413/loveland_chap02.pdf
League of Nations Photo Archive; Chronology 1931
http://www.indiana.edu/~league/1931.htm
Lawyers are still the Owners of ‘Morton’s Fork’ type legislations, processes, practices, and money-grabbing.
They draw (and are ‘given’, by other top-oligarchic money-monopolists such as the Establishment, the Parliaments, the Bankers, the Professional-Sector in general and of course by the Rich) almost as much super-profit from losing as they do from winning, cases.
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Wrong that they are ever popular in the 75% lifestyle-timeframe;
only possibly correct that they are sometimes in greater demand in the 25% workplace-timeframe.
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Principles-score for this Post:
Clarity, about 2 out of 10.
Charity, perhaps 5 out of 10.
Self-correction preparedness, little evidence of any, as the baroness is ‘hiding’ behind ‘pure-reportage’; so 1 out of 10 (for the exclamation mark at the very end).
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JSDM0013M04Oct10
“that placing judicial appointments in the hands of a commission subject to ultimate ministerial approbation also carries risks.”
As opposed to the risks accompanied by the self-selecting and promoting judiciary appointing from amongst themselves those they wish. I think the judiciary protest too much and use ‘independence’ as smoke screen to avoid perfectly legitimate arguments about accountability in a democratic society.
Should I prefer ad hoc interpretation by an appointed Supreme Court to post-legislative scrutiny by an appointed second House? No.
Incidentally, would someone enlighten me on how one or more sections of Acts can be ‘not in force’ or, alternatively, how I am supposed to know which bits are in force?
Ladytizzy – far be it for me to decry in any way the great benefits of post-legislative scrutiny, but I see this not as an either/or matter. I am persuaded that there is a considerable case for a Charter – or whatever one might call it – of fundamental rights within which the legislature should have to operate, determined, ultimately, by the courts’ability to strike down offending legislation. I think there is little in the recent Canadian judgement that one would describe as ‘ad hoc’:
http://www.cbc.ca/news/pdf/bedford-ruling.pdf
Stephen, I hope you will understand if I leave the particular matter linked above for some time yonder – 130pp is a bit much for an illustration, but I will bank it.
When an Act is passed, it does so after many minds have had a good go at it, with an amendment here and another one there. Those involved know what they have in mind and accompanying notes aim to ensure those who are selected to execute the law are on the same page.
When a bit of law is shown to have had unintended consequences I believe the evidence should be handed back to Parliament toute suite for a recall rather than the potential of case law eroding the original meaning.
You might guess that I’m lukewarm on a Charter/Bill of Rights/whatever. They have a habit of becoming unworkable after a couple of centuries, providing various groups of nutters with grist.
Many Acts provide in their wording that they will either come into force immediately or that parts will be delayed until a certain date or order. This is to allow time for detailed administrative provisions to be made to effect the changes. You can see this set out on e.g. the site http://www.statutelaw.gov.uk. There you can search for an Act, and then you can see from the symbols next to each section whether it is in force or not.
Thank you for this most helpful link.
BD: When researching my post above I included in the search parameters one of South Africa’s most famous imported lawyers one Mohandas Karamchand Gandhi.
There is no doubt in my mind that his experiences in SA lit a fire within him that sustained his personal convictions throughout his life. What I did not know is that he mentioned the ‘Statute of Westminster’ in his plenary session round table conference speech of December 1, 1931 were he addressed Prime Minister and friends.
He is quite nonchalant about the draft copy that he has seen. He notes that the word ‘Dominion’ has been exhaustively defined and goes on to say:
“…It simply said: the word ‘Dominion’ shall include Australia, South Africa, Canada and so on, ending with the Irish Free State. I do not think I noticed Egypt there.”
He then adds:
…”Do you see what your Dominion means?” It did not make any impression upon me. I do not mind what my Dominion means or what Complete Independence means. In a way I was relieved. I said I am now relieved from having to quarrel about the word ‘Dominion’, because I am out of it. But I want complete independence, and even so, so many Englishmen have said: “Yes, you can have complete independence, but what is the meaning of ‘complete independence’?” And again we come to different definitions. Therefore, I say the Congress claim is registered as Complete Independence…
He effectively puts the British establishment on notice that he will not accept Dominion status for India but also points out that the establishment is to deny equality to Egypt. In due course history unfolded as it did. He became and still is a much loved lawyer by many around the world.
Ref: The Collected Works of Mahatma Gandhi XLVIII
Speech at Plenary Session of Round Table Conference
December 1, 1931; Para 10.
http://www.kingsleyhall.freeuk.com/gandhicw48.htm
On the question of legislature v judiciary, I was much struck recently by the Canadian Charter of Rights and Freedoms, which was apparently passed by Westminster as part of the Canada Act in 1982 (which also granted Canada legislative independence). Under it, Canadians may challenge criminal code offences if they are found to breach their fundamental rights.
Westminster seems much more generous to Canadians than it does to British subjects, who, of course, have been granted no such rights.
Three Canadian sex workers used their rights recently to considerable effect:
http://www.theglobeandmail.com/news/national/ontario/ontario-superior-court-judge-strikes-down-prostitution-law/article1730433/
There is considerable evidence that very similar laws in the Britain have a similar effect as in Canada, but I gather British sex workers would have to take their case to Europe for a similar hearing.
Stephen: I don’t follow your point at all. The HRA is almost exactly analogous to the CoR in Canada. The marginal difference is I believe that the courts here can’t strike the law down but can only give a declaratory judgement. However in practice they have I suggest on occasion interpreted the HRA to construe the requirement to interpret the law in line with the HRA as to misconstrue acts (or parts thereof) and apply them contrary to their plain meaning rather than as parliament intended issue the declaratory judgement and let parliament alter the act.
The CoR is also inferior in that it sits alongside the constitution so can’t be used to adjudge the constitution itself whereas the HRA is not so restricted.
On your argument “Under it, Canadians may challenge criminal code offences if they are found to breach their fundamental rights.”
As I see it the HRA allows you to do exactly what you suggest it can’t!
Croft – The HRA, I accept, is a considerable step forward, yet really only very belately ratifies a European Convention dating from the forties, and a convention which has been a great blessing yet which is very much a creature of its time. It is permeated throughout with get-out clauses for any Government attempting to uphold “public morals,” for example, and has always represented a lowest common denominator safety net, when surely as a nation we should be striving to ensure our citizenry have enhanced rights and freedoms.
The problem with your ‘enhanced rights’ is that there are relatively few things that are almost universally accepted as rights by the public at large – torture for instance. The more rights your try to create the more likely they are to enjoy limited acceptance and as polling shows the ECHR has pretty dreadful public acceptance as it is I’m not convinced of viability of expansion.
This is the fundamental problem with the ECHR – it was a document drawn up by the political class for the political class excluding by design the electorate and by amendment continues to do so. I think this is a serious problem for the support and acceptance of such documents and intellectually problematic in a democratic society.
Whilst the rights granted by the two pieces of legislation may, or may not, be identical the means, and effectiveness, of their enforcement is not.
In Canada, if my understanding is correct, the courts can strike down legislation that contravenes Human Rights in Britain the courts cannot do that. The effect of the Human Rights Act(HRA) is merely to make a new rule of interpretation of legislation. So a court will, and has, bend the language to make it conform but cannot break the language if Parliament’s intention is clearly not in alignment with the HRA
Lady Tizzy – yes 130 pages is a hefty chunk. It is, however, quite educational and relatively easy reading for a Supreme Court judgement, and has the dual advantage of illustrating both, on the one hand, how a learned judge measures statute law against constitutional requirement and the various tests applied; and, on the other, providing an interesting insight into the history and efficacy of measures of criminal law very similar to our own in many ways, and with similar unintended consequences.
I might add that, while bits of criminal law with unintended consequences may be handed back to Parliament ‘toute suite’, they have an unpleasant tendency to immediately lose their toute suite quality upon arrival, and languish, often for several generations, even centuries. However, the unintended consequences continue unabated.
Croft – as usual on this blog, I agree with much of what you say. However, I do think the public’s view of ECHR has been much coloured by the EU and the public’s understandable resentment about being told what to do by Brussels. ECHR, of course, has nothing to do with the EU, but I don’t think the public understands that, they just see Europeans making decisions governing us. This makes the case for a home grown product even greater in my eyes, for the HRA finds itself in the sights of prominent politicians from time to time, and I remember David Blunkett going so far as talking of copping out of some sections of the ECHR itself. This makes the human rights area a very shaky and precarious one in the UK. It is a raft where we need a rock.
In describing the UK constitution and courts, Dingle and Miller, who gained in part their respective legal qualifications in South Africa and Canada, make it clear that the UK does not formally posses a constitutional court in the manner of South Africa.
Loveland on pages 23, 24 discusses the Diceyan (or orthodox) theory of Parliamentary Sovereignty in terms of its positive and negative limbs:
“the negative limb is that the legality of an Act of Parliament cannot be challenged in any British court. According to the traditional view of the sovereignty of Parliament, there is no mechanism within the British constitution for declaring an Act of Parliament legally invalid.”
Should we have a Constitutional Court, after all we have a Supreme Court?
Ref: LLRX: UK Constitutional Reform
Lesley Dingle and Bradley Miller, June 21, 2004
http://www.llrx.com/features/ukconstitution.htm
South African Legal Information Institute
Constitutional Court Judgements
http://www.saflii.org/
Could any other participant in the Lords of the Blog tell me how far the ‘legality’ of an Act of Parliament contrasts with the ‘practical-effects’ of that legislation ?
I mean, on-the-ground, at the battle front, amidst the Atlantic storms, among the grass roots, and-or trying to silently hold one’s breath when some homicidal-burglar breaks into one’s lone single cottage way out in the sticks at dead of night ?
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Senex – whether a seperate court would be required is surely secondary to the essential question of whether there should be legal constraints upon the executive and, if so, what those should be, how they would be formulated and whether they could command the general acceptance of the public. The mechanism of implementation is vital but secondary, I would have thought the existing structure would be sufficient, the standard of our judiciary being high.
What is needed is something fairly simple. The Americans managed their constitution on two or three sides of foolscap, an admirable achievement compared to the voluminous proposed European constitution of recent years. Was it JFK who said “Bring it me back on a side of A4?” I do think a little more than a side would be required, but not too much more.
The lack of such a Charter – I don’t the term Constitution is helpful, though no doubt it would form a part of that abstract notion we call our constitution – has always seemed to me to cause huge and very expensive drift by central government from one administration to the next. One thinks of the swings and roundabouts of industrial relations law from the sixties to the eighties, for example. One might look at the conflict of rights inherent in so-called secondary picketing, cf the rights of those opposing apartheid outside the South African embassy, many of which may never have met a South African. I don’t want to go into the ins and outs of those issues, but a Charter, it seems to me, could have steadied the ship somewhat through those turbulant times and prevented Government taking things to excess, as many would argue occurred during the Miners’ strike.
SP: Parliament has a light touch when it comes to changing the constitution. It only needs a majority of one vote in each house to bring about the change. This encourages constitutional politics rather than sound constitutional law based upon genuine need.
The real question is why is it like this? Perhaps it evolved this way in order to manage an empire where quick decisions were a matter of life and death or perhaps it became this way because political parties aware of their power exercised them prudently and wisely for the sake of the greater good.
Recently, one retired law lord, late to give his maiden speech, advised the house to proceed with caution. Why should he have done this? I think he felt that the wisdom of previous political generations was being abandoned.
If we accept the premise that a light touch to constitutional change favoured efficient management of an empire then what should we make of this now that the empire has gone? If Parliament cannot adopt the cumbersome approach of having a two thirds majority in each house to effect constitutional change then we should perhaps give greater powers to the Supreme Court, not only interpret constitutional law but to strike parts of an act if they are found wanting.
The Supreme Court in this respect becomes a problem. It was set up to conform to EC Statutes where Supreme Courts are separated from their legislatures. Now it finds itself on the wrong side of Parliamentary Sovereignty and unable to fulfil the role of a constitutional court. We really should consider the principle of a two thirds majority in both houses before constitutional change can take place. However, both houses like it the way it is – this does not bode well for the future.
Senex – I don’t know that the real question is why is it like this. The general answer is “Because we’ve always done things this way,” and the question whether it’s the best way is too rarely raised. Those who wield power in the status quo invariably resist change. Power has been moved from the monarch to Parliament but seems to have become frozen there, indeed, insofar as it has moved at all it seems to have coalesced still further into No 10 and the personage of the PM of the day. Whilst we have made much progress towards the universal franchise, actual power in Parliament always seems concentrated in fewer and fewer hands.
To a great extent, I think, our macro problem is not so much of Parliament’s making. Indeed, if successive governments had not done a reasonable job, presumably there would have been some revolution, which may ultimately have resulted in a more balanced scenario, but, on the other hand, may not, revolutions being somewhat unpredictable in their outcomes.
The problem that requires addressing in the Westminster system, it seems to me, is the tyranny of the minority. Whereas normally a constitution is expected to guard one against the tyranny of the majority, I cannot remember a single party ministry in my lifetime (I’m 58) having achieved a majority of the popular vote (indeed their vote shares have been declining over the long term), so it is generally the tyranny of the minority that’s the problem in the Westminster case.
Whilst I can well understand the case for a weighted majority in each house for constitutional change, surely this would stack the odds even further in favour of the status quo. And like any other act of Parliament (and this, it seems to me, is its great weakness as a stand alone institution), an Act requiring a weighted majority could be repealed by a simple majority and, politics being the art of the possible, no doubt would be at some point.
Unless it was built into something like a Charter and sanctified by a referendum, which is surely about as safe as it is possible to make things.
JSDM: More to the point, what do we do with EC legislation that is not doing its job properly? The house as you know is to invest in pre and post legislative scrutiny in order to improve the quality of British law. If its broken, hopefully it will be caught and a remedy provided by Parliament.
In the spirit of the thread I hope a certain irony has not been lost upon you.
When Loveland describes ‘Harris v Dönges’ he says:
“Firstly, the South African Parliament could not, under any circumstances, pass laws ‘repugnant’ to British statutes intended to have effect within South Africa. The supremacy of British law vis à vis South African law was a substantively entrenched feature of South Africa’s 1909 constitutional settlement.”
And when Dingle and Bradley talk of the European Communities Act 1972 they say:
“…Gave effect within the UK to those provisions within EC law which according to various treaties have direct effect within member states. This is held to mean by the ECJ that Community law prevails over any inconsistent provisions of the national law of member states. In effect, if Parliament legislates in breach of Community law, the courts within the UK must not apply the conflicting domestic law.”
If Parliament passes a law repugnant to the EC Parliament the law must be struck or modified to comply with EC law. In effect we have become a colony of the EC just as SA was once a colony or Dominion of the British Empire; very frustrating for nationalistically inclined members of Parliament.
I now better-appreciate the over-/under- lapping (in some sense perhaps “lapdog-ing”) legislations by “parent” (versus) “subject” legislatures, topic.
((I guess one other instance could be when Australia’s Northern Territory legalised euthanasia, but Canberra very quickly and summarily struck it )).
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The major spotlight that again has to be switched-on and aimed, is:
Since legislation should (dominantly) provide for the Needs, Hows and Costs of The People i.e. of whole (human) populations and therein of each and every individual person, how could our civilisation continue failing to correctly identify our individual, and collective, Needs, Hows and (Affordable) Costs ?
How could our modern civilisation’s expert leaders and teams (in Geography, Economics, Medicine, Holistic-Health, Legislation, Judiciary, Community,and so on and so forth) be continually and thereby continuously avoiding the Listing both of our common and our special human Needs, Hows, and Costs ?
And why substitute ‘usurpingly’ wild-arrays of indeterminately muddled, fuddled and (when it comes down to implementation) ‘duddled’ Declarations and Bills of “Human-Rights” ?
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That is why I tried to articulate a focus upon “what is the practical relationship of legislation to every-individual-human-being’s material, psychological, sociological, and spiritual (in that order) needs, hows, and costs-of-living ((to build and maintain a healthy, citizenlike, and environmentally-supportive affordable lifestyle, regardless of the linked 25% work-place affordable costs ))”.
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Otherwise, I have no idea what the ‘spirit’ of this ‘thread’ is.
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(I think this had better be new Comment rather than a mere singular “Thank-you Senex, But…” Reply).
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1010Sn101010. 248 words.
Five days with next to no internet connection. Thanks so much, AOL, for allowing me to re-live life beyond the keyboard; let’s do this again soon.
Where was I? Steven, no quarrel on how the poor rate of progress from one quarter lends weight to the argument for another to take up the reins. Simply, it’s not how I would prefer matters to be handled.
One of the elements I touched upon, that of those who are given the job of executing the law, has not been explored. Inquiries into police behaviour generally have a high public profile but, further down the chain, those who are empowered by, say, local authorities are less transparent.
In short, a jobsworth is no different to Justice Eady.