Some of our most fundamental freedoms are derived from the common law. Residual freedom, habeas corpus, right to a fair trial… they’re all enshrined in statute now, but they all developed by judges. What’s not to like?

Judicial activism isn’t a problem from a democratic perspective. Whenever Parliament doesn’t like a judgement it can always step in and change the law (like it did with Burmah Oil).

Plus, Judges are hardly cavalier about it. The law changes pretty slowly and judges are traditionally quite good at steering clear of areas better left to Parliament,

“If you live in England and you genuinely think that there is something deeply and desperately wrong with the idea of judges making law..”

Who whines about this exactly? I can’t say I’ve come across many people expressing disdain for Judges making law.

The basis of common law is that judges do not make law, they only interpret it.

The problems arise when some claim that the word ‘interpret’ is stretched and there is regular debate in legal circles as to when a judge pushes interpretation too far and strays into ‘making’. The most obvious case is probably the alleged ‘law of privacy’ which is a mix of the common law of confidence interpreted via the European Convention on Human Rights’ requirement for respect for private and family life. There is a legitimate debate as to whether Justice Eady is pushing the interpretation boat out too far on this one.

But you’re right, to call this judicial activism is just silly. It’s just part of the rough and tumble of the legal process and yes judges do get it wrong and that’s when the appeal courts come in as you say.

Personally, I think the worsening power relationship between the executive and parliament is a much bigger issue. The government can force through primary legislation which gives the executive more and more scope to pass secondary legislation meaning less of our actual law is voted on by MPs. The packing of select committees contributes to this, as scrutiny no longer effetively challenges such power grabs.

However this is much more difficult to present to the electorate than ‘judges abuse power’ so most people don’t worry about it and the media don’t pick up on it sufficiently.

I don’t think that when people do express concern over judicial activism they generally do so in ignorance of the principles of common law. The Supreme Court of Canada, for instance, defines judicial activism thus:

…The charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. .

Wikipedia employs a similar definition:

Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law.

Whether the issue is aboriginal land rights in Australia or the application of the European Convention on Human Rights in the UK, allegations of judicial activism tend to be framed in these terms – that judges are acting in pursuit of a personal political agenda rather than according to the traditional practice of decision-making in the common law context.

I don’t know where Unity comes across these ‘ignorant, mouth-breathing morons who know nothing of this country’s history and even less about its legal and judicial system’. Perhaps they are common in the circles in which left-wing bloggers move? I wouldn’t know. I can’t say I have ever met one.

Strikes me as being yet another straw man post, this one.

Well said, Unity.

It is not judges creating law that is the problem but thick career politicians who have got their grimy paws on statutory instruments. These people create law uninformed by centuries of judicial wisdom but in response to a Daily Mail headline.

Common law is one of the few bulwarks left that help defend us from political tyranny.

A good point well made, Unity.

Andy, I don’t think privacy is an obvious case of what you’re saying at all.

First, it’s often forgotten by critics like George Galloway that it was Parliament that enacted privacy law through the Human Rights Act. Any MP who didn’t realise what it meant in terms of privacy simply wasn’t sufficiently briefed. Parliament expressly instructed our courts to enforce the article 8 right to respect for private life, and to take account of very non-secret cases like Von Hannover v Germany (http://www.bailii.org/eu/cases/ECHR/2004/294.html) when doing so. If they didn’t know they were making a privacy law, they should have known. The courts are simply applying that law, which came with plenty of case law already.

As for Eady J’s privacy judgments – they are thoroughly orthodox in the way they take account of the Strasbourg and House of Lords case law, and very difficult to criticise as going further. It’s worth noting I don’t think any of his privacy judgments have been successfully appealed, which is the obvious thing to do if you think he went too far. In McKennitt v Ash as I recall, the Court of Appeal specifically endorsed his approach.

What people also often ignore is how friendly his Mosley ruling was to the press – he did make some suggestions about how the law could develop further so as to give greater protection to responsible journalists – but drew back from basing his ruling on such ideas precisely because for him to do so would have been clear judicial activism. But he’d put the idea on the table for the newspaper’s lawyers to argue for on appeal, had they chosen to do so. He also declined to give exemplary damages; I think that decision was too generous to the newspaper (which was maybe one reason they didn’t think it wise to appeal).

So don’t fall for Paul Dacre’s line that privacy law is all about one man’s amoral judicial activism.

Still makes me chuckle – although I’m sure most judges are not in such a thrall to the establishment ……….. are they?
http://www.youtube.com/watch?v=jUrnTTJQQYg&feature=PlayList&p=6E857EEEDC100297&playnext=1&playnext_from=PL&index=31

First, it’s often forgotten by critics like George Galloway that it was Parliament that enacted privacy law through the Human Rights Act

But wasn’t that act inherently designed to be revolutionary, to precisely reverse the previous protocol for law-making between judges and Parliament?

Under the UK common law system pre-HRA, as described by Unity above, judges make law, based on practical experience at the sharp end of actual cases. Then Parliament may choose to veto it if they don’t like it (and the electorate may then choose to veto Parliament..).

Under the US system, and increasingly in the UK, parliament makes law, in response to the theoretical concerns of social scientists, or (mostly) tabloid journalism. Then the judges veto it if they don’t like it.

Ad the Earl of Mansfield said ‘nothing can be suffered to support [slavery], but positive law’. The clear implication is that if parliament _had_ passed a law legalising slavery, it would have been his job to enforce it. Wheras a US-style judge would throw such a proposed law out of court.

There are arguments for either system, but what I don’t think you should end up with is a hybrid where judges have both the power to create law and the power to veto it, and parliament is left as a useless constitutional appendix issuing press releases and trying to get slots on reality TV game shows…

But wasn’t that act inherently designed to be revolutionary, to precisely reverse the previous protocol for law-making between judges and Parliament?

No.

Ad the Earl of Mansfield said ‘nothing can be suffered to support [slavery], but positive law’. The clear implication is that if parliament _had_ passed a law legalising slavery, it would have been his job to enforce it. Wheras a US-style judge would throw such a proposed law out of court.

Not in 1772 they wouldn’t have.

It seems to me that the phrase “judicial activism” is one that’s been borrowed from Republican jargon in the US, which has an entirely different context (due to both its constitution & method of appointing judges, and its political culture) esp since Roe vs Wade.

Tim:

Yes, the US is largely where this is coming from and the context over there is very different to that in England and Wales.

To address Flowerpower’s point, criticism of so-called judicial activism can be found on both the left and right.

On the left, it tends to be found mainly amongst the remnants of the hard left and the critique is that judges are not democratically accountable.

On the right, it tend to come from vulgar libertarians and unreconstructed bigiots who are, for the most part, simply parroting what they see on American blogs whenever the courts make a ruling they don’t much like.

As far as ECHR and HRA goes, the issue there is not one of judges operating politically but a consequence of the interplay between our own common law system and the European Court, which is largely made us of judges from Civil/Napoleonic Code countries.

The articles in ECHR are themselves a slightly uncomfortable mix of principles drawn from the two systems.

Pretty much everything up to article 7 is drawn from English Law, but articles 8-11, which are the ones that most often cause a bit of friction, are framed more in the manner of the European civil code system inasmuch as they set out qualified rights.

This can, and does, create the occasional jurisprudential clash that creates precedents that sit rather uneasily without our own history and traditions.

Interestingly, one of the more minor but illuminative arguments in favour of a codified Bill of Rights for the UK is the observation that the European Court tend to be a little more mindful of ‘local’ differences in law and jurisprudence where these are codified in written constitution law, which is why you’ll occasions come across the complaint that Germany, for example, gets a slightly easier ride that the UK on some issues.

Damn right Unity. As Mansfield didn’t say “The air of England is too sweet for a slave to breathe ” or some such.

And this difference between Common Law and the Civil or Napoleonic Code of the Continent is one of my reasons for being in UKIP (yes, despite Godfrey not realising that someone had died in the Rainbow Warrior as I was told yesterday).

What I do think is the best structure for a legal system (note, structure, not necessarily that all of the laws or conclusions it comes to are the best) is simply incompatible with that over La Manche.

I hear all the time of meetings in Brussels about this or that new law. The Brits are asking, well, why, umm, why do we need this law? The continentals are saying, well, how will people know what they can do if there isn’t a law telling them what they can do? To which the Brit response is: well, there’s no law against it so of course they can do that if they want to. To the consternation of the continentals. No, no, they say, there must be a law setting out what the citizenry may do….no, only laws telling them what they may not do…..and both sides are entirely incapable of understanding the basic mind set of the other.

This is how we get the jams, jellies, marmalades and sweet chestnut purees regulations of 2004 (breach of these is indeed a criminal offence) wherein, for the purposes of making jam, carrots are defined as fruit. And you can get 6 months in jail plus a £5,000 fine for the impertinence of adding essential oils of citrus to jam. Or, indeed, jelly.

This difference also leads to perhaps the best solution I’ve heard from anyone about the Human Rights Act. No, don’t abolish it, as above, most of it is simply codification of Common Law. However, as Lord J Wolff (I think) has pointed out, having it interpreted for a Common Law jurisdiction by 45 judges only two of whom (the Brit and Irish ones, the rest of the court includes luminaries from such delightful places as Serbia and Russia) would know the Common Law if it came up and bit them on the arse probably isn’t the best way to do it. Keep the Act but alter it so that it is the Supreme Court which is the top court in which it is justiciable.

At least then we’ve got people interpreting it within our system of law, by those who do know their arse from their elbow.

Tim W,

Keep the Act but alter it so that it is the Supreme Court which is the top court in which it is justiciable.

You appear to have conflated the HRA and the ECHR.

Keep the Act but alter it so that it is the Supreme Court which is the top court in which it is justiciable.

All in favour of this, obviously, but isn’t it fairly fundamental to the ECHR that there should always be a right of appeal to Strasbourg?

The incompatability between Common and Code law is, in my view, pretty central to the entire European debate.

You appear to have conflated the HRA and the ECHR.

The HRA does little more than enact the ECHR into British statutory law.

This is one of the worst pieces I’ve read on Lib Con for a long time.

Reams of poorly regurgigated undergraduate Law 101 topped and tailed by a catastrophic misunderstanding of George Galloway’s point on Question Time.

Galloway was saying that on euthanasia the place for a major change in how it is treated by the law is by debate and ultimately legislation in a democratically-elected parliament.

That is absolutely in the centre of utterly conventional thinking on how the British constitution should work, and if you’re so befuddled by an irrational hatred of George Galloway you are unable to hear what he is saying, you should go and have a lie down, not spout on here.

Judges interpret the common law, which has over a thousand years tradition of being pretty down on euthanasia and if there is to be a big shift to make the kind of thing Terry Pratchett is asking for legal, then of course only parliament can do it. Clare Short made the point on QT that suicide used to be illegal, and then it was legalised. Of course a judge couldn’t do that, only parliament could.

Tim Worstall, you are usually intelligent. You should be ashamed of yourself for thinking this is about common law -v- Napoleonic codes as an issue. It is not.

Galloway – whatever some idiots think of him – is a master parliamentarian. Don’t try to claim he doesn’t understand first principles. Unity isn’t fit to wipe his arse.

British public should have the democratic right to decide

As a genuinely parliamentarian

You appear to have conflated the HRA and the ECHR.

Not really.

As Tim J has noted, HRA merely encapsulates ECHR into UK law, which gives our judiciary first crack at what would otherwise be cases that would end up in the European Court.

Most of the problems arise, as noted, from jurisprudential conflicts between interpretations drawn from our own common law and those drawn by European judges based on their understanding of Code law.

There are exceptions to this, notably on the issue of deporting ‘undesirables’ to countries where they would be at risk of torture.

This is typically (and dishonestly) framed by politicians as a consequence of ECHR, because the direct piece of relevant case law was laid down by the European Court – before HRA was introduced, BTW.

In reality, however, the ruling in that case is full consistent with our own legal traditions, specifically the outlawing of the use of torture by Parliament when it repealed the Star Chamber and the somewhat older principle that, other than in times of war, everyone living in the UK and its associated territories is entitled to the full enjoyment of the King’s/Queen’s peace irrespective of their national origins or personal allegiance to a foreign power.

If they break our own laws, then all such bets are off, but as long as foreign national has entered the UK legally and is legal resident here then, provided they abide by our laws they should be subject to deportation, even if a foreign power considers them to be a traitor or terrorist.

The other other permissible modification of that principle lies in the existence of extradition treaties which permit an individual to be deported to face criminal charges, but even then deportation is (or was) permitted only where:

a. the offence of which they’re accused is also an offence in the UK,

b. the country seeking extradition produces prima facie evidence that the individual has a genuine case to answer, and

c. the likely penalty on conviction does not violate our own laws on the impermissibility of cruel and unusual punishments – which is why, since the abolition of the death penalty, we won’t deport individuals to the US unless the prosecuting authority gives an undertaking that they will not seek the death penalty on conviction, even it its an option under state or federal law.

“Tim Worstall, you are usually intelligent. You should be ashamed of yourself for thinking this is about common law -v- Napoleonic codes as an issue. It is not.”

Apologies….just riffing off the point Unity made. I know nothing about what George Galloway said and care even less. I simply don’t watch television (well, maybe around 4 pm this Saturday I will be).

19 – the game at 5pm will be better…

“The other other permissible modification of that principle”

Well, yes, except we’ve now got the European Arrest Warrant which explicitly abolishes the double criminality point for a start. Plus habeas corpus, right to a jury trial and a number of other such things.

Strategist:

I was using Galloway as a springboard into a more general observation about the importance of the common law but as you raise the question of assisted suicide its worth noting that although it is the case that only Parliament can enact a general law that permits assisted suicide, that does not preclude the courts, or other parts of the legal system, from operating a de facto ‘law’ of that nature on a strictly case by case basis.

In fact, there are three separate avenues by which such a policy could be pursued.

1. The DPP can decline to prosecute cases where they are satisfied that the individual who was helped committed to commit suicide did so fully of their own violition and were or sound mind on taking the decision on the basis that such a prosecution would not be in the public interest.

2. Judges can negate such cases by directing the jury to either acquit or, if the option is open to them, to return a guilty verdict on a lesser charge of a kind that would permit the judge to pass a non-custodial sentence such as a conditional discharge or probation.

And

3. A jury faced with such a case is fully entitled to refuse to return a guilty verdict, even if directed to do so by a judge.

You’ll that Charlie Falconer, who was the only lawyer on the panel, expressed only one reservation, which was on suggestion that a tribunal deal with applications for permission to assist a suicide, rather than the courts, which are already well equipped to deal with such difficult matters if given the latitude to do so.

Tim:

The European Arrest Warrant is, in my view, an abomination.

Galloway was saying that on euthanasia the place for a major change in how it is treated by the law is by debate and ultimately legislation in a democratically-elected parliament.

I like George Galloway and I was a little surprised by what he said on this.

Surely the point about euthanasia is that it is almost impossible to enact legislation that will cover the wide spectrum of circumstances in which it occurs and that would also provide safeguards to potential abuse. This is surely the kind of area where it makes much more sense to rely on the wisdom of prosecutors and judges to apply common sense than to pass a one size fits all law.

In any case on recent form the chances of our current parliamentarians having the intellectual rigour to successfully draft legislation on such a subject are minimal.

[24] “Surely the point about euthanasia is that it is almost impossible to enact legislation that will cover the wide spectrum of circumstances in which it occurs and that would also provide safeguards to potential abuse”.

Somebody better tell Lord Joffe then;
http://www.publications.parliament.uk/pa/ld200506/ldbills/036/06036.i.html

“3. A jury faced with such a case is fully entitled to refuse to return a guilty verdict, even if directed to do so by a judge.”

Indeed, I am of the opinion that juries should be informed that they can effectively nullify the law if they don’t approve of it.

@22 “I was using Galloway as a springboard into a more general observation about the importance of the common law”

Thanks for this, Unity. My only point about your “rant” over “George Galloway’s verbal excrescences” was that I don’t think George fits into your category of people who don’t understand our common law system and therefore drive you mad. He’s a highly experienced constitutional politician, who knows the consitution very well indeed. One of the things he knows about it is that it is not democratic enough – hence the good points well made that Falconer ought to have to seek election, not just get plonked in there for life because he was Tony’s old flatmate.

On assisted suicide, he made a very standard “slippery slope” argument with his usual panache (about this starting with Terry Pratchett and ending with government trying to save money by bumping off old folks “panels of Doctor Deaths”). This is a strongly Catholic “pro-life” type viewpoint laced with a streak of libertarian “don’t trust the state” – which you might expect to appeal to the right rather than some of the left (he was after all agreeing with Mad Melanie Philips on the issue). But the kind of gullible pro-war idiots duped into blind hatred for George Galloway are too stupid to realise that.

[27] “On assisted suicide, he made a very standard “slippery slope” argument”.

If abortion stats are anything to go by then, yes, it is difficult to believe that assisted deaths will not follow a similar pattern (of escalation) once euthanasia is established, and accepted, culturally.

It is inevitable that people worry about any new venture at the BEGINNING, especially if it is controversial (as abortion was in it’s day) – but if something happens often enough we soon switch off.

The pattern of assisted euthanasia in the UK tell us, that to date, the legal system has no appetite for punitive measures even when laws appear to be broken?

Not in 1772 they wouldn’t have..

Yes, and even rather later than that they were prepared to effectively override the perfectly clear and unambiguously passed laws against murder in cases where the defendant was wearing a white hood…

If you want judges to both create _and_ interpret the law, you can try Mega City One.

Judge Dredd, now _he’s_ a judicial activist…

Broadly speaking I agree with Unity, but I think there are two points to flag up.

1. Just because something is a throw back to our history is neither an argument for its validity or invalidity. Unity goes on to point out that the common law system ‘works’ – and later points to eight hundred years of legal precedent on which our judges can draw, but the early part of this article almost seems to assume that just because something is old, it’s valuable. I would dispute that.

As a sub-note to point one, even these eight hundred years of legal precedent, and the ability to refer back to the finest minds in British legal history are hardly great things – bearing in mind that our conservative Establishment has had grossly authoritarian moments in its past. Besides no judge is a disinterested vessel through which this precedent reaches the present.

2. I think that in attacking George Galloway’s nonsensical demagoguery (rightly so) I think the article misses a trick by failing to point out that what Galloway should have a problem with is not judicial activism, judge made law (or whatever) per se. It’s that there is a definite sociological bias in who we appoint as judges, even in the appellate courts and certainly the Law Lords, only one of whom is a woman and all of whom have come up via Oxford or Cambridge. There is an argument to be made that this may have an impact on the interpretations of law handed down.