"We know what [the law] is and we do not breach it".
That reminds me of my accountant years ago, a seasoned professional who was about to become a partner, and the dark shadows under whose eyes bespoke many hours of burning the midnight oil.
One day he told me that even he could not hope to keep abreast of even the annual changes and additions to the parts of accounting law that were most relevant to his work.
We are deep into a world that Ayn Rand perceptively foretold 70 years ago. The system that she described is now full-fledged and rules our lives, whether we know it or not. And woe betide the person who unwittingly infringes some obscure regulation. We are all like farmers trying to do our work in a newly-laid minefield, never knowing when the next step will blow off a leg or kill us.
"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with".
Like virtually all of us, I think she was wrong about a few things and perhaps overenthusiastic about others. But that’s true of many great writers and artists.
But only by reading her work can one get at the points where she was right. I find her work hard to get into but once started I don't want to put it down.
Be warned, her atheism upsets a lot of religious minded people - hers in particular I think.
Oddly enough, although I don’t get upset, her atheism is one thing I take issue with. Anyone’s atheism, actually - even the blessed Richard Dawkins.
I’m agnostic, because I don’t see any way of finding out for certain whether there are any gods.
From what I have seen of the circumstantial evidence, I choose to factor gods and anything “spiritual” out of my real-world thinking. But, like everything else, that’s only a matter of likelihood. And for some reason, I don’t accept Pascal’s Wager as valid.
“Don't believe anything. Regard things on a scale of probabilities. The things that seem most absurd, put under 'Low Probability', and the things that seem most plausible, you put under 'High Probability'. Never believe anything. Once you believe anything, you stop thinking about it”.
The self-regard of judges was turbocharged by Blair's creation of the Supreme Court culminating in Brenda - sorry Lady Hale - letting politicians know who is boss. In parallel, Parliament was content to diminish itself and not just by passing more and more decision making to Brussels but, in order to work less, by no longer sitting in the evenings. Detailed scrutiny of legislation and its attendent debates were out sourced from the full House to committees not all of which comprised MPs (e.g. Climate Change). Increasingly, the House of Commons passes skeleton legislation only to be filled in by ministers or a slew of Statutory Instruments drawn up by civil servants.
Our low calibre MPs, whose calibre seem to get lower with each election, allowed the judges to step into the partial vaccuum they created while also allowing Prime Ministers to govern increasingly presidentially e.g Blair's sofa goverment to Theresa May by-passing her own cabinet over the EU. These days party manifestos are equivalent to Estate Agents' puff.
MPs have been passive in these twin processes of judicial hubris and changes to the style (and content) of Parliamentary government., but so have our media.
When the Lisbon Treaty surrendered 144 powers (or thereabouts) to Brussels there was no proportionate reduction in MPs pay (as I suggested there should be to my MP) to reflect their greatly dimished work load.
Meanwhile, this erosion of democracy, has changed the relationship between citizen and state. When, to my shock and horror, Finance Act 2015 allowed HMRC to raid bank accounts without judicial warrant, we were told at the time it woiuld be used only for the most egregious cases of which there were siad to be 17 owing millions. Last October, HMRC said it would use the power on anyone owing a mere £1000 if they did not cough up pronto; proving a case in court, that ancient safeguard, was so inconvenient.
What you say about the modern judiciary also applies to almost all members of the credentialled classes: they start with the answer they 'feel' and work backwards using cherry-picked evidence to support their position. This can usually be spotted by specialists in the field but rarely seems to be, perhaps because of vested interest.
This contagion has spread throughout our society, even to some fields of scientific enquiry, whose integrity has now been compromised. The culture that brought us out of the dark ages is now under threat.
I believe there are (long term) solutions to this problem but they will take more than a few politicians and law lords to establish.
A big part of the problem is too many people going to university and being taught there that having a degree means you automatically know best about everything.
I've written elsewhere that the question that no-one in the wider Government (i.e. including QUANGOs, NGOs, the judicial system etc.) asks themselves is “Should Government intervene in shaping society”?
The problem is (beyond just ‘control’) that no Government can know what the shape of society *should* be at any one time. Perhaps they should limit themselves to policing violence and let everyone else sort themselves out?
Arguably there are already too many opportunities to appeal convictions over interpretations of what the particular law *should* be - perhaps limit appeal to substantial new evidence only?
This is a great point. In a little while I will be reposting an academic piece which recently came out in a book I edited, and which speaks directly to this point. It is really Coase’s old argument: in other to justify state intervention you have to actually explain plausibly why it will make things better than doing nothing.
Surely intervention always supports the people making the intervention, whether it benefits the people being intervened upon or not? It is always possible for the interested party to make a case for intervention, and indeed it is permanently motivated to do so.
For example, each successive UK government boasts of how much more it is spending on the NHS, as if this was intrinsically good. Yet if the NHS was effective, it should be congratulated on spending less each year as the population becomes healthier and therefore less in need of treatment.
See also social work, education, the police etc etc.
In UK politics it is practically impossible to make a case for spending less on the NHS, because it's a sacred totem of British identity now. A Latin American friend was very confused by the 2012 London Olympic opening ceremony featuring nurses, in a spectacle directed by Danny Boyle. "What's that got to do with the Olympics?", she asked.
I believe the disgraced GIDS clinic at the Tavistock & Portman Trust in London is a perfect example of the NHS having more resources than it actually needs. Certain clinicians were able to make harmful interventions on children according to their personal beliefs about gender identity, without any evidence base.
See also the case of surgeon Yasser Jabar at Great Ormond Street, who carried out unnecessary leg operations on dozens of children. Some children had multiple failed operations on the same leg, leading to amputation.
It would take a brave politician to point out that NHS spending is out of control, and yet the British as a nation don't seem to be getting healthier. Taking the whole system back under state control would in theory hamper corporate financial interests, but wouldn't address the internal vested interests of the system itself. I have read that the NHS is the largest single employer in the world.
Except that the NHS is not a single employer. It is composed of literally thousands of independent "trusts", which are given money by the government but not directly controlled by the government.
This is the result of a botched Conservative attempt to introduce an "internal market" into the NHS, followed by Blair's removal of the competitive element of this market, but not elimination of the "market" itself.
Kind of. Although there are lots of trusts, other organisations and direct employees as well, there are almost 1.7 million people on the NHS payroll in England alone.
I agree and ministers and govt’s should set out a budget in their election manifesto with an agreed percentage saving prior to taking up their posts. CEOs of businesses are held to account by shareholders and their boards against their plans and often they’re held accountable for their actions unlike politicians who, like football managers, never fail and still gain rewards and even patronage like gongs and external contracts after leaving parliament. Budgets and proposed manifesto policies should be seen as legally binding with consequences if they don’t attempt them or simply fail.
Sounds great, but first define "violence." Just as an example: should verbal harassment and intimidation count (given that these can cause distress no less intense than a physical beating)?
A society that only counts physical violence as a crime is one kind of society; a society that recognizes other types of violence as criminal is another type. Inevitably, the way we define terms shapes society.
I see your point but... in my view violence in this setting (policing behaviour) should mean physical violence. Violence resulting in bruises, wounds, broken bones and death.
Once you open up the definition to include 'hurt feelings' you open up the expectation of government control for anyone with a grievance, real or imagined, and that expectation becomes politicised. In my opinion we are well down that path already. I believe this diverts attention from physical violence. By all means have laws regarding harassment, intimidation, slander, or libel but make them civil matters outside government intervention (as some are already).
We go back to passing legislation that is explicit and unambiguous rather than delegating powers to ministers to make up rules on the hoof.
As David points out, if the rule preventing a munition worker from ever being evicted from his tenancy had been contained in statute rather than being a rule made up by a minister using his delegated powers, it would have been enforceable with no power of the court to intervene.
And in the modern world where the specific words of a new Act to allow, for example, the immediate deportation of illegal immigrants might be contradicted by some other Act, eg the Human Rights Act, the new law needs to state explicitly that it applies notwithstanding anything that any other Act may say to the contrary. And ideally all these general obstacle acts, such as the HRA, which impede governments doing what they are elected to do need to be repealed or at least very substantially defanged.
If a new law directly contradicted the Human Rights Act, the new law would take precedence. That is a basic principle - new laws override older ones. However regulations made by ministers (under powers granted by Acts of parliament) cannot contradict previous Acts.
No, nowadays sadly the position would be (at least as judges now see it) that since the Act is a ‘constitutional statute’ it is not impliedly repealed. It has to be actually explicitly repealed if it is to be removed.
I gather this principle was only established by a case in 2002 - after the crucial 1997 watershed.
Looks like a very very clear case of judicial overreach to me. The court was explicitly deciding to overrule an Act of Parliament. Looks like Parliament needs to pass an explicit Act re-establishing the principle of implied repeal.
It must be good practice anyway for all contradictions arising from old law to be repealed explicitly by new law rather than relying on a doctrine of implied repeal. Having contradictory laws on the Statute Book isn’t a good look. I would have thought that any self respecting lawyer would hate such a scenario!
The Thatcher Parliament thought they had done that with the Merchant Shipping Act when they sought to protect UK fishing. A District Court decided UK laws were graded and implied repeal did not work from a lesser over a more highly rated law.
Guess what - all pro-EU law was held to be superior to any UK laws.
In the case of EU law, that was all superior to U.K. law because the European Communities Act 1972 made it so. But this was a form of subjugation voluntarily entered into by Parliament which Parliament ultimately was able to, and did, remove.
So Parliament always can amend or repeal any existing law that acts as a fetter on implementing any new law. It would be interesting to see if the courts would ever attempt to rule that some piece of domestic law is so entrenched that it cannot be repealed or amended.
As a principle I approve of the doctrine of the supremacy of Parliament with no role for the judiciary in creating their own form of law that can trump statute.
But in the absence of a written, difficult to change, constitution, I’m also conscious that a government with a huge majority made up of people who are not “good chaps” (such as the present shower) could legislate to abolish all future elections, stuffing the Lords or using the Parliament Act as necessary to get it onto the statute book. In such circumstances, and not wishing to place reliance on the King refusing Royal Assent, the intervention of the courts to strike down the law, using some artifice of which I would normally disapprove, seems attractive.
I think the problem here is that if a Parliament were minded to actually do such things the judiciary wouldn't really be able to stop it: the politicians would simply find a way to replace the judges. This is de Jasay's old point about the irrelevance of constitutions. When constitutional constraints are truly needed, such as when a genuinely tyrannical government is in power, they are rendered defunct by said government's lack of respect for them.
We clearly need constraints on bad people in majority parties who might well try to deny democracy. All systems to achieve that are likely to break down if the political class deteriorates as much as it has, the publiuc are depoliticised, the media are as poor quality as the politicians and the judiciary support left wing and elitist government, which they do here now.
Conventions well understood by the public would be a big improvement and so would mandatory recall referendums.
We are suffering from 25 years of elitist power grab which the media and the peole have either accepted or not understood.
Is this not just the final nail in the coffin of Enlightenment philosophy? That is, the idea that one could pass laws in the abstract with no preconceived background noise of "right vs. wrong" - it would all be dry legalese and judges would be no more than living AI bots interpreting the law from within, with no personal bias, moral values etc. playing a role?
Turns out that judges are just as human as the rest of us and their rulings (like our own opinions and actions) are shaped by their worldviews. Worse still, it seems to be impossible to craft a legal canon so watertight that there is no room for people to interpret laws in a way other than the People's representatives intended (if they even fully understood what they intended, along with the likely and possible repercussions).
Back in the day, law was interpreted in light of Christian morality; today, it is more likely to be interpreted in light of one of the modern religions (woke, progressivism, eco-worship, Stalin-worship, take your pick). As to which is best...
Yes utilitarianism has a lot to answer for with the ensnaring and subjugation of the individual for the “greater good” of the state. Remember how they conned folk with the efficacy of those infernal covid jabs - they resorted to the illiberal and ridiculous mantra of “no one is safe until we’re all safe”. Also, they duped folk by only referring to the relative efficacy of the jabs when it was really about the absolute efficacy of them which concealed that the jabs were useless, and as we now know from the Yellow Card system they were seriously harmful to us, but profitable for the drug pushers ie big pHarma! Individual consent was destroyed by govt and the state gained greater control over our freedom with its appeal to the collective.
there’s your answer : de-fang the Supreme Court and restore democratic Parliamentary sovereignty who takes it upon itself to determine what is / is not susceptible to third party interference over a dinner party chin-wag
Appreciated the point about key indicators of a healthy judicial ecosystem....you rarely get to/have to interact with it. It reminds me of watching sports games that were so well-officiated (and well-played), you almost forgot there were referees on the pitch.
I suppose this illustrates the problems you get when parliament, instead of legislating for a particular legal framework, decides to give power to ministers to issue regulations.
Parliament has sovereign powers. Ministers do not. They can be second guessed by the judiciary. If parliament abdicates its responsibility to make laws, instead passing its powers to ministers, the result is a free for all in which ministers squabble with judges.
The modern approach of Enabling Acts is absolutely corrosive of our legal system and of our democracy itself.
I wonder if the situation would have been different if the Home Secretary had laid the regulations before Parliament as a SI. I wonder if the Home Office adequately explained the consequences of dangerous materials being concealed among voluminous legal correspondence. Why not force the prisoners to use the internet for any such corresponndence.
We should require the funding source for such legal work to be disclosed - is Soros still seeking to disrupt the UK?
No, an SI could still be struck down as unlawful in the same way. I agree entirely about the funding, though. You always have to assume in a case like Daly that there is an NGO behind the litigation. But this is not often made clear in the judgment.
No man should be a judge in his own cause yet in the battle between politicians and the judiciary, judges are always judges in their own cause. Therefore they will always win.
"We know what [the law] is and we do not breach it".
That reminds me of my accountant years ago, a seasoned professional who was about to become a partner, and the dark shadows under whose eyes bespoke many hours of burning the midnight oil.
One day he told me that even he could not hope to keep abreast of even the annual changes and additions to the parts of accounting law that were most relevant to his work.
We are deep into a world that Ayn Rand perceptively foretold 70 years ago. The system that she described is now full-fledged and rules our lives, whether we know it or not. And woe betide the person who unwittingly infringes some obscure regulation. We are all like farmers trying to do our work in a newly-laid minefield, never knowing when the next step will blow off a leg or kill us.
"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with".
- Ayn Rand, "Atlas Shrugged"
I was taught to pooh-pooh Ayn Rand as a young undergraduate. I need to properly read her.
Like virtually all of us, I think she was wrong about a few things and perhaps overenthusiastic about others. But that’s true of many great writers and artists.
But only by reading her work can one get at the points where she was right. I find her work hard to get into but once started I don't want to put it down.
Be warned, her atheism upsets a lot of religious minded people - hers in particular I think.
" I find her work hard to get into but once started I don't want to put it down".
True of much great work. Before you get the view from the mountains you have to do a good deal of hard climbing. (Well, you did in Nietzsche's day).
Oddly enough, although I don’t get upset, her atheism is one thing I take issue with. Anyone’s atheism, actually - even the blessed Richard Dawkins.
I’m agnostic, because I don’t see any way of finding out for certain whether there are any gods.
From what I have seen of the circumstantial evidence, I choose to factor gods and anything “spiritual” out of my real-world thinking. But, like everything else, that’s only a matter of likelihood. And for some reason, I don’t accept Pascal’s Wager as valid.
“Don't believe anything. Regard things on a scale of probabilities. The things that seem most absurd, put under 'Low Probability', and the things that seem most plausible, you put under 'High Probability'. Never believe anything. Once you believe anything, you stop thinking about it”.
- Robert Anton Wilson
Part of the problem is that we are now "ruled" whereas we should only be governed with consent.
The self-regard of judges was turbocharged by Blair's creation of the Supreme Court culminating in Brenda - sorry Lady Hale - letting politicians know who is boss. In parallel, Parliament was content to diminish itself and not just by passing more and more decision making to Brussels but, in order to work less, by no longer sitting in the evenings. Detailed scrutiny of legislation and its attendent debates were out sourced from the full House to committees not all of which comprised MPs (e.g. Climate Change). Increasingly, the House of Commons passes skeleton legislation only to be filled in by ministers or a slew of Statutory Instruments drawn up by civil servants.
Our low calibre MPs, whose calibre seem to get lower with each election, allowed the judges to step into the partial vaccuum they created while also allowing Prime Ministers to govern increasingly presidentially e.g Blair's sofa goverment to Theresa May by-passing her own cabinet over the EU. These days party manifestos are equivalent to Estate Agents' puff.
MPs have been passive in these twin processes of judicial hubris and changes to the style (and content) of Parliamentary government., but so have our media.
When the Lisbon Treaty surrendered 144 powers (or thereabouts) to Brussels there was no proportionate reduction in MPs pay (as I suggested there should be to my MP) to reflect their greatly dimished work load.
Meanwhile, this erosion of democracy, has changed the relationship between citizen and state. When, to my shock and horror, Finance Act 2015 allowed HMRC to raid bank accounts without judicial warrant, we were told at the time it woiuld be used only for the most egregious cases of which there were siad to be 17 owing millions. Last October, HMRC said it would use the power on anyone owing a mere £1000 if they did not cough up pronto; proving a case in court, that ancient safeguard, was so inconvenient.
We have been and are slowly boiled frogs.
Yes - we now have to think what to do about it. A big problem that we have to be equal to.
What you say about the modern judiciary also applies to almost all members of the credentialled classes: they start with the answer they 'feel' and work backwards using cherry-picked evidence to support their position. This can usually be spotted by specialists in the field but rarely seems to be, perhaps because of vested interest.
This contagion has spread throughout our society, even to some fields of scientific enquiry, whose integrity has now been compromised. The culture that brought us out of the dark ages is now under threat.
I believe there are (long term) solutions to this problem but they will take more than a few politicians and law lords to establish.
A big part of the problem is too many people going to university and being taught there that having a degree means you automatically know best about everything.
Guilty as charged! Although it's a while since I got my Degree, and I think I've got over it now.
Wilde said "The old believe everything; the middle-aged suspect everything and the young know everything."
I guess that makes me middle aged. I'll settle for that.
When, according to the statistics, having a degree now makes you average.
I've written elsewhere that the question that no-one in the wider Government (i.e. including QUANGOs, NGOs, the judicial system etc.) asks themselves is “Should Government intervene in shaping society”?
The problem is (beyond just ‘control’) that no Government can know what the shape of society *should* be at any one time. Perhaps they should limit themselves to policing violence and let everyone else sort themselves out?
Arguably there are already too many opportunities to appeal convictions over interpretations of what the particular law *should* be - perhaps limit appeal to substantial new evidence only?
This is a great point. In a little while I will be reposting an academic piece which recently came out in a book I edited, and which speaks directly to this point. It is really Coase’s old argument: in other to justify state intervention you have to actually explain plausibly why it will make things better than doing nothing.
Surely intervention always supports the people making the intervention, whether it benefits the people being intervened upon or not? It is always possible for the interested party to make a case for intervention, and indeed it is permanently motivated to do so.
For example, each successive UK government boasts of how much more it is spending on the NHS, as if this was intrinsically good. Yet if the NHS was effective, it should be congratulated on spending less each year as the population becomes healthier and therefore less in need of treatment.
See also social work, education, the police etc etc.
Yes, it's amazing how nobody ever notices this.
In UK politics it is practically impossible to make a case for spending less on the NHS, because it's a sacred totem of British identity now. A Latin American friend was very confused by the 2012 London Olympic opening ceremony featuring nurses, in a spectacle directed by Danny Boyle. "What's that got to do with the Olympics?", she asked.
I believe the disgraced GIDS clinic at the Tavistock & Portman Trust in London is a perfect example of the NHS having more resources than it actually needs. Certain clinicians were able to make harmful interventions on children according to their personal beliefs about gender identity, without any evidence base.
See also the case of surgeon Yasser Jabar at Great Ormond Street, who carried out unnecessary leg operations on dozens of children. Some children had multiple failed operations on the same leg, leading to amputation.
It would take a brave politician to point out that NHS spending is out of control, and yet the British as a nation don't seem to be getting healthier. Taking the whole system back under state control would in theory hamper corporate financial interests, but wouldn't address the internal vested interests of the system itself. I have read that the NHS is the largest single employer in the world.
Except that the NHS is not a single employer. It is composed of literally thousands of independent "trusts", which are given money by the government but not directly controlled by the government.
This is the result of a botched Conservative attempt to introduce an "internal market" into the NHS, followed by Blair's removal of the competitive element of this market, but not elimination of the "market" itself.
Kind of. Although there are lots of trusts, other organisations and direct employees as well, there are almost 1.7 million people on the NHS payroll in England alone.
https://digital.nhs.uk/data-and-information/publications/statistical/nhs-workforce-statistics/november-2025
I agree and ministers and govt’s should set out a budget in their election manifesto with an agreed percentage saving prior to taking up their posts. CEOs of businesses are held to account by shareholders and their boards against their plans and often they’re held accountable for their actions unlike politicians who, like football managers, never fail and still gain rewards and even patronage like gongs and external contracts after leaving parliament. Budgets and proposed manifesto policies should be seen as legally binding with consequences if they don’t attempt them or simply fail.
Sounds great, but first define "violence." Just as an example: should verbal harassment and intimidation count (given that these can cause distress no less intense than a physical beating)?
A society that only counts physical violence as a crime is one kind of society; a society that recognizes other types of violence as criminal is another type. Inevitably, the way we define terms shapes society.
I see your point but... in my view violence in this setting (policing behaviour) should mean physical violence. Violence resulting in bruises, wounds, broken bones and death.
Once you open up the definition to include 'hurt feelings' you open up the expectation of government control for anyone with a grievance, real or imagined, and that expectation becomes politicised. In my opinion we are well down that path already. I believe this diverts attention from physical violence. By all means have laws regarding harassment, intimidation, slander, or libel but make them civil matters outside government intervention (as some are already).
How do we go about putting judges back in their proper place?
We have to start with legal education, actually. I’ll be writing something about this soon.
We go back to passing legislation that is explicit and unambiguous rather than delegating powers to ministers to make up rules on the hoof.
As David points out, if the rule preventing a munition worker from ever being evicted from his tenancy had been contained in statute rather than being a rule made up by a minister using his delegated powers, it would have been enforceable with no power of the court to intervene.
And in the modern world where the specific words of a new Act to allow, for example, the immediate deportation of illegal immigrants might be contradicted by some other Act, eg the Human Rights Act, the new law needs to state explicitly that it applies notwithstanding anything that any other Act may say to the contrary. And ideally all these general obstacle acts, such as the HRA, which impede governments doing what they are elected to do need to be repealed or at least very substantially defanged.
If a new law directly contradicted the Human Rights Act, the new law would take precedence. That is a basic principle - new laws override older ones. However regulations made by ministers (under powers granted by Acts of parliament) cannot contradict previous Acts.
No, nowadays sadly the position would be (at least as judges now see it) that since the Act is a ‘constitutional statute’ it is not impliedly repealed. It has to be actually explicitly repealed if it is to be removed.
Interesting.
I gather this principle was only established by a case in 2002 - after the crucial 1997 watershed.
Looks like a very very clear case of judicial overreach to me. The court was explicitly deciding to overrule an Act of Parliament. Looks like Parliament needs to pass an explicit Act re-establishing the principle of implied repeal.
It must be good practice anyway for all contradictions arising from old law to be repealed explicitly by new law rather than relying on a doctrine of implied repeal. Having contradictory laws on the Statute Book isn’t a good look. I would have thought that any self respecting lawyer would hate such a scenario!
The Thatcher Parliament thought they had done that with the Merchant Shipping Act when they sought to protect UK fishing. A District Court decided UK laws were graded and implied repeal did not work from a lesser over a more highly rated law.
Guess what - all pro-EU law was held to be superior to any UK laws.
In the case of EU law, that was all superior to U.K. law because the European Communities Act 1972 made it so. But this was a form of subjugation voluntarily entered into by Parliament which Parliament ultimately was able to, and did, remove.
So Parliament always can amend or repeal any existing law that acts as a fetter on implementing any new law. It would be interesting to see if the courts would ever attempt to rule that some piece of domestic law is so entrenched that it cannot be repealed or amended.
As a principle I approve of the doctrine of the supremacy of Parliament with no role for the judiciary in creating their own form of law that can trump statute.
But in the absence of a written, difficult to change, constitution, I’m also conscious that a government with a huge majority made up of people who are not “good chaps” (such as the present shower) could legislate to abolish all future elections, stuffing the Lords or using the Parliament Act as necessary to get it onto the statute book. In such circumstances, and not wishing to place reliance on the King refusing Royal Assent, the intervention of the courts to strike down the law, using some artifice of which I would normally disapprove, seems attractive.
I think the problem here is that if a Parliament were minded to actually do such things the judiciary wouldn't really be able to stop it: the politicians would simply find a way to replace the judges. This is de Jasay's old point about the irrelevance of constitutions. When constitutional constraints are truly needed, such as when a genuinely tyrannical government is in power, they are rendered defunct by said government's lack of respect for them.
So it’s pitchforks time then.
We clearly need constraints on bad people in majority parties who might well try to deny democracy. All systems to achieve that are likely to break down if the political class deteriorates as much as it has, the publiuc are depoliticised, the media are as poor quality as the politicians and the judiciary support left wing and elitist government, which they do here now.
Conventions well understood by the public would be a big improvement and so would mandatory recall referendums.
We are suffering from 25 years of elitist power grab which the media and the peole have either accepted or not understood.
Is this not just the final nail in the coffin of Enlightenment philosophy? That is, the idea that one could pass laws in the abstract with no preconceived background noise of "right vs. wrong" - it would all be dry legalese and judges would be no more than living AI bots interpreting the law from within, with no personal bias, moral values etc. playing a role?
Turns out that judges are just as human as the rest of us and their rulings (like our own opinions and actions) are shaped by their worldviews. Worse still, it seems to be impossible to craft a legal canon so watertight that there is no room for people to interpret laws in a way other than the People's representatives intended (if they even fully understood what they intended, along with the likely and possible repercussions).
Back in the day, law was interpreted in light of Christian morality; today, it is more likely to be interpreted in light of one of the modern religions (woke, progressivism, eco-worship, Stalin-worship, take your pick). As to which is best...
Yes - funnily enough this development goes hand in hand with the teaching of law at universities, begun by disciples of Bentham in the 1830s.
Yes utilitarianism has a lot to answer for with the ensnaring and subjugation of the individual for the “greater good” of the state. Remember how they conned folk with the efficacy of those infernal covid jabs - they resorted to the illiberal and ridiculous mantra of “no one is safe until we’re all safe”. Also, they duped folk by only referring to the relative efficacy of the jabs when it was really about the absolute efficacy of them which concealed that the jabs were useless, and as we now know from the Yellow Card system they were seriously harmful to us, but profitable for the drug pushers ie big pHarma! Individual consent was destroyed by govt and the state gained greater control over our freedom with its appeal to the collective.
who decides what is justiciable ?
well, the judiciary, actually
there’s your answer : de-fang the Supreme Court and restore democratic Parliamentary sovereignty who takes it upon itself to determine what is / is not susceptible to third party interference over a dinner party chin-wag
we have a lot of growing up to do
Sadly there is an awful lot!
Appreciated the point about key indicators of a healthy judicial ecosystem....you rarely get to/have to interact with it. It reminds me of watching sports games that were so well-officiated (and well-played), you almost forgot there were referees on the pitch.
A fabulous exposition. Thank you.
I suppose this illustrates the problems you get when parliament, instead of legislating for a particular legal framework, decides to give power to ministers to issue regulations.
Parliament has sovereign powers. Ministers do not. They can be second guessed by the judiciary. If parliament abdicates its responsibility to make laws, instead passing its powers to ministers, the result is a free for all in which ministers squabble with judges.
The modern approach of Enabling Acts is absolutely corrosive of our legal system and of our democracy itself.
I wonder if the situation would have been different if the Home Secretary had laid the regulations before Parliament as a SI. I wonder if the Home Office adequately explained the consequences of dangerous materials being concealed among voluminous legal correspondence. Why not force the prisoners to use the internet for any such corresponndence.
We should require the funding source for such legal work to be disclosed - is Soros still seeking to disrupt the UK?
No, an SI could still be struck down as unlawful in the same way. I agree entirely about the funding, though. You always have to assume in a case like Daly that there is an NGO behind the litigation. But this is not often made clear in the judgment.
No man should be a judge in his own cause yet in the battle between politicians and the judiciary, judges are always judges in their own cause. Therefore they will always win.