MP thinks that Judges legislate...

I was listening last night to the Commons debate on the second reading of the Terrorism Prevention and Investigative Measures Bill which is set to replace Control Orders with TPIMS - which are in fact more or less just like Control Orders but with a different name.

During the debate the MP named below said the following which I quote from Hansard:

8.37 pm

Mr Dominic Raab (Esher and Walton) (Con)

Control orders are not just of dwindling relevance; they constitute a distraction from robust law enforcement and are actually a negative. That is why I welcome the Home Secretary's renewed focus on the Prevent strategy. I would welcome further still measures to strengthen our deportation capacity, which has been undermined by judicial legislation resulting from article 8 of the European convention on human rights, via the Human Rights Act 1998. The massively inflated rights to family life now allow the majority of deportation orders to be frustrated. That has nothing to do with article 3 torture grounds, which I would stand up for


Have relations between Parliament and the Judges become so poisoned that this chap thinks that there really is such a thing as 'judicial legislation' in the UK which Judges make in order to actively undermine the Government's implementation of a deportation regime set out in an Act of Parliament.  At least he acknowledges that this 'judicial legislation'  is 'via' the HRA 1998.


Mr Raab - what you actually meant is that Parliament in 1998 compelled judges to apply article 8 of the European Court of Human Rights to the law of England and Wales, including that bit of the law which sets out when we can deport terrorists.  


The application of article 8 is not judicial legislation - it is merely what judges do - are compelled to do - applying the law as made by Parliament to the facts of a case.  


I am also unaware of any case where a judge has refused to deport a terrorist on article 8 grounds - this is mainly because article 8 rights to a family life can be infringed where the infringement (the deportation) is proportionate to the legitimate aim of the security of the UK.  So even if the Judges have been legislating - they have 'passed' no law which means that terrorists can hide behind article 8.   


True it is that terrorists can hide behind article 3 - we cannot deport them back to countries which will torture them, but then article 3 is an absolute right - I am glad that Mr Raab finds it in himself to stand up for terrorists not being tortured......


But who is going to stand up for the judges and explain to the average MP, that they, MPs, make law in a Sovereign Parliament - and Judges just apply it - if Judges interpret Acts of Parliament or introduce common law rules which MPs don't like - they (with the House of Lords) can pass an Act which better expresses the democratic will (see the Compensation Act and its overturning of a Supreme Court judgment etc.).....Mr Raab, please read a constitutional textbook before you next malign HM Judges....

Scots get tartans in a twist about SCUK....

The Scottish Government (as it now likes to call itself notwithstanding its statutory title) is getting all upset about the Supreme Court hearing human rights appeals in Scottish criminal cases.  Article 19 of the Act of Union stated that after the Union the Scottish court system would be the same as before the Union.  Before the Union in civil cases, the final court of appeal in Scotland was the independent Parliament of Scotland.  There was no such right of appeal in criminal matters and the High Court of Justiciary was the final court in all Scottish criminal cases.   In 1876, in the case of Mackintosh v. Lord Advocate (1876) 2 App. Cas. 41  the House of Lords (finally) decided that it did not have jurisdiction to hear a Scottish criminal appeal because whilst it had inherited the jurisdiction of the old pre-Union Scottish Parliament in civil matters, it had inherited nothing in respect of criminal matters.  This has now been recognised in Westminster pre-devolution legislation which still applies - section 124(2) of the Criminal Procedure (Scotland) Act 1995.

The Scotland Act 1998 limited the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers and the Lord Advocate in many ways, including to only legislating and acting in accordance with the Convention rights protected by HRA 1998.  If complaint were made that the Parliament or the Executive had acted beyond their competence - a so called Devolution issue or minute - then the final court of appeal to determine such issues was the Judicial Committee of the Privy Council.

This body was chosen, instead of the House of Lords, precisely because it was recognised that one side wind of this new jurisdiction would be Scottish criminal cases being finally determined on human rights grounds in London.  It would cause political difficulty and constitutional problems if the House of Lords were to be vested with the final constitutional power to arbitrate on devolutional issues in Scottish criminal cases where the Law Lords had hitherto had no jurisdiction.  Plus the JCPC's flexible membership could be used to add Scottish Judges to the court to make it look less like English Judges deciding Scottish cases.  The JCPC heard a succession of Scottish criminal human rights appeals in this manner until the foundation of the new Supreme Court.

At this stage some bright spark had the brilliant idea to transfer the JCPC's devolution jurisdiction to the Supreme Court.  And this is where the error leading to the current complaints from Scotland occurred. We now have the position of a Court which inherited its jurisdiction from the House of Lords hearing cases which the House of Lords could not have heard - because of the historical and political sensitivity.  The Schedule 6 devolution minute/issue jurisdiction should have remained with the JCPC in order to preserve the nicecities (and to have allowed more Scottish Judges to have sat on cases - see Lord Kirkwood sitting with Lords Hope and Clyde in the JCPC in 2000 in this case).

The JCPC and Supreme Court usually use the same judges - but the JCPC's position outside the hierarchy of the English Legal System, allows it to be presented as less of an affront to Scotland's ancient independent legal system.  Such presentational issues matter and indeed the recent decision by the SCUK in Fraser has shown how upset the Scots can get when presentationally it looks like an English Court is usurping independence of the Scots judiciary (notwithstanding Lord Hope's and Lord Roger's (and indeed Lord Kerr's) presence on the Court which decided Fraser).  The jurisdiction should have stayed with the JCPC, I suspect it is now too late to turn back the clock.....

The main point is that our current constitutional arrangements are an absolute historical and asymmetrical mess and the sooner we have a written and rational Constitution - the better....

SCOTTISH INDEPENDENCE IS NOT A MATTER FOR THE SCOTTISH PARLIAMENT

Before Alex Salmond gets too excited he should recall that there are only two ways in which Scotland can obtain independence - UDI or an Act of the Westminster Parliament.  The Union between England and Scotland is a reserved matter under the Scotland Act 1998 and the Scottish Parliament cannot pass an Act severing the Union (not least because the Union was created by an Act of the Westminster Parliament).  Some might argue that a referendum of the whole UK population would be politically necessary before Westminster could pass such an Act.

Mr Salmond's referendum would only authorise him to open negotiations for such an Act to be passed by the UK Parliament (which would probably also be a Treaty between the two new states) and it would not automatically lead to independence (save for UDI, which would seem unlikely and would also breach international law and would probably lead to Scotland finding it difficult to join the EU, especially if Catalonia thought it could do likewise).  Once such terms for independence were agreed with the UK Government, especially relating to how much they would loose in subsidy, defence, foreign affairs, exports, oil revenues, gold reserves etc. etc. etc. it may well be that independence would not look quite so rosy.......

Schedule 5, Scotland Act 1998

The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,

(c)the Parliament of the United Kingdom,

(d)the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e)the continued existence of the Court of Session as a civil court of first instance and of appeal

Should a Coroner's Jury be permitted to indict?

A Coroner's Jury is the last remnant of the Grand Jury, the men of the County who used to report what crimes had been commited in the local area, since the last time the King's Justices visited on circuit.  Still used widely in the USA, but abolished here in 1933 (1984 in Nova Scotia!) prosecutors would have to convince the Grand Jury that there was sufficient evidence to indict the proposed defendant, before a trial could take place (now replaced by committal proceeding or 'sending the case to the Crown Court').  In the case of a death, it was for the Coroner's Jury to decide whether or not someone should face an indictment (a true bill) for an unlawful killing.  Coroner's Juries lost this power in 1977 and now they cannot frame their verdict so as to blame any named person for the death. Hence the Tomlinson Jury could not name PC Harwood.  Frankly (and I have done many jury inquests) I have long thought that the whole system, even with the improvements since the introduction of the Article 2 Middleton style inquest, is a waste of time.  The most which can result from an Inquest is (a) a critical report from the Coroner, which can be ignored (although must be responded to by the public bodies concerned) (b) the gathering of useful evidence for other proceedings and (c) some form of closure or catharsis for the family.  The Coroner's inquest does not guarantee a prosecution being launched or civil compensation.  I recognise that it is a form of investigation into a death and that positive things often come out of an inquest - but to what real tangible end?

In the Tomlinson case, a jury found beyond reasonable doubt that a Police Constable had unlawfully killed a citizen.  They were directed by a Senior Old Bailey Criminal Judge.  Usually when a jury, directed by an Old Bailey Judge, return a verdict that somebody has been killed, beyond reasonable doubt, the defendant usually goes to prison.  It seems to me that to make Coroner's Inquests meaningful, in every case where an indictment might be on the cards, the Coroner should summon a jury and direct them to consider not only their verdict but also whether anybody should be indicted for the death - this could include corporate manslaughter or death by dangerous driving as well as the usual homicide offences.  The CPS could subsequently drop the prosecution if not convinced by the indictment or if a witness dropped out (although they would have to tread carefully so as not to seem to be dismissive of the Jury's decision to indict) and the Coroner would be able to direct the jury not to consider an indictment where there is insufficient evidence, just as a Coroner can direct that certain verdicts are not available on the evidence.  At least the Jury's hard work would be worthwhile, would result in something tangible and would give the family some hope that justice might be served in the future.

If the Police had already opened an criminal investigation - then I do not suggest that an inquest should supplant the usual criminal investigative and trial process - it should only be in cases where there has been no criminal investigation that the Jury has the power to indict.  But then a full inquest following a criminal trial is very very rare.  The Jury's power would only be useful where the CPS or Police had neglected to act or where the inquest had uncovered new evidence (happens more often than you might think where an alert and efficient Coroner is on the case). Often the HSE use inquests to flush out evidence to use in health and safety prosecutions - I suspect the jury's power to indict would be very useful to the HSE, likewise for the police in road traffic cases.  If an indictment was open to the jury, I would permit the advocates to address the jury and the Coroner on the facts and on whether an indictment should be preferred (presently and bizarrely - advocates can only ask questions of witnesses (which must not imply guilt or blame) and address the Coroner on the form of verdict to leave to the jury  - or if sitting without a jury, which he or she should consider).  

Inquests were to be improved by the Coroners and Justice Act 2009, but the Coalition has shelved most of that - most tragically the new office of Chief Coroner is going to be burnt in the bonfire of the quangos (HHJ Thornton QC of the Tomlinson inquest was going to have the job) unless the House of Lords can force a re-think - it is high time that a centralising force gives some focus and consistency to Coronial work and lets hope that the Coalition changes its mind......

Tomorrow sees the 7/7 Inquest Verdict................

Announced - Sumption and Wilson to go to Supreme Court

After months of speculation Downing Street has made the announcement.  There has been unfair criticism of Sumption delaying his appointment until he has completed his professional commitments; barristers do not return cases (indeed cannot) to fit in with their judicial careers and Sumption is right to complete his professional commitments before he takes his appointment.  His clients are entitled to their lawyer of choice and to hold Sumption to his professional duty. Note that Lord Collins is going to fill in in retirement whilst the Court waits for Lord Sumption (the first Barrister to straight go to the UK's highest court in 62 years - Viscount Radcliffe (as he ended his career) was the last.)

 Wilson LJ's appointment is also to be welcomed - he has handed down many excellent judgments and not just in his core field of family law.   

The Queen has been pleased to approve the appointment of the Right Honourable Sir Nicholas Allan Roy Wilson as a Justice of the Supreme Court with effect from 26 May 2011 following the retirement of The Right Honourable The Lord Saville of Newdigate in October 2010.

The Queen has also been pleased to approve the appointment of Jonathan Philip Chadwick Sumption OBE, QC as a Justice of the Supreme Court following the retirement of Lord Collins of Mapesbury in May 2011 with effect from a date to be agreed with the President of the Court.

Biographical Notes

Lord Justice Nicholas Allan Roy Wilson (65) was called to the Bar (Inner Temple) in 1967 and took Silk in 1987. He was appointed as a Recorder in 1987 and was made a Bencher in 1993. He was appointed to the High Court (Family Division) in 1993 and to the Court of Appeal in 2005.

Lord Justice Wilson was knighted in 1993.

Jonathan Philip Chadwick Sumption OBE, QC (62) was called to the Bar (Inner Temple) in 1975 and took Silk in 1986. He was appointed as a Deputy High Court Judge in 1992 and served as a Recorder between 1993 and 2001.  He was then appointed as a Judge of the Courts of Appeal of Jersey and Guernsey in 1995.

Additional Note for Editors

Jonathan Sumption OBE, QC will take up the appointment as soon as his existing professional commitments are completed, on a date to be agreed with the President of the Supreme Court.

Following his retirement Lord Collins of Mapesbury will sit as an additional Judge of the Supreme Court.

THE CPS SHOULD HANG ITS HEAD IN SHAME

The CPS should have charged PC Simon Harwood  - see here.

& now they certainly should...... well done that jury....the lamp that shows that freedom lives....

Ian Tomlinson unlawfully killed, inquest finds

UPDATE - CPS to review their decision not to prosecute following jury's verdict - http://blog.cps.gov.uk/2011/05/cps-to-review-decision-on-charges-over-death-of-ian-tomlinson.html

Good, make it quick and make it just.....

I fully support this campaign...

See here - http://www.no2av-yes2pr.org/