The Supreme Court

[Kirkhill]

Can't find an existing thread - and the topic keeps coming up.

Here from the Daily Telegraph - an article on The Supreme Court (UK release).  It applies, in my less than humble opinion, to all Supreme Courts and especially in the Westminster context.

http://www.telegraph.co.uk/news/politics/11951936/Our-top-judges-have-become-too-powerful-we-need-to-rein-them-in.html

Our top judges have become too powerful - we need to rein them in

Lord Kerr and his 11 Supreme Court colleagues are becoming the unacknowledged legislators of mankind and are undermining the rights of our politicians

The Lords of the Supreme Court, (back row, left to right) Lord Camwath, Lord Sumption, Lord Clarke, Lord Kerr, Lord Wilson and Lord Reed, with (front row, left to right) Lady Hare, Lord Hope, Lord Neuberger, Lord Walker and Lord Mance, October 1, 2012
The Lords of the Supreme Court, (back row, left to right) Lord Camwath, Lord Sumption, Lord Clarke, Lord Kerr, Lord Wilson and Lord Reed, with (front row, left to right) Lady Hare, Lord Hope, Lord Neuberger, Lord Walker and Lord Mance, October 1, 2012 Photo: PA


By Charles Moore6:44PM BST 23 Oct 2015

There is a vacancy just now for the chairmanship of the Judicial Appointments Commission. The position is always held, says the advertisement, by a layman. I’m thinking of applying. It matters who our top judges are, so I’d like to help. In this age of transparency, diversity and anti-elitism, it should be no disadvantage that I know nothing about the law.

Besides, because of the Human Rights Act by which the first Blair government made the European Convention of Human Rights part of our law, the judges’ job has changed. They are no longer solely learned people who uphold English precedent, process and legal principles. They are now empowered to impose theoretical ideas of universal rights upon the decisions of the elected government.
In a case last year, for example, Theresa May, the Home Secretary, decided that it would be against the public good for Britain to admit an Iranian woman with a terrorist conviction. A court case was brought against Mrs May. One Supreme Court judge, Lord Kerr of Tonaghmore, held that the court had the power not only to review whether the Home Secretary’s argument was “tenable” according to the rules, but whether it was “right”. He did not mean legally right: he meant just, well, right in the broadest possible sense. He thought that, because he was a top judge, he now had that power.

I have met Lord Kerr, as it happens, and found him a kindly and decent man. I have no reason to think he suffers from delusions of grandeur. He is simply pursuing the logic of the modern legal situation. Section 3 of the Human Rights Act places upon judges a duty to try to make British legislation compatible with the European Convention on Human Rights. This gives them, in practice, the licence to ignore what Parliament intended and impose what they want.

So I want to be part of this game. If Lord Kerr and his 11 Supreme Court colleagues are becoming the unacknowledged legislators of mankind, thereby undermining the rights of the politicians whom we, the people, have elected, then we, the people, need to get some power over these judges.

Until now, British citizens have had the inestimable benefit of not having to scrutinise who our senior judges are, because we have trusted them to stick to their vital but confined professional task. We have no more needed to know their political views than we have those of great oncologists or brain surgeons. But if they are to decree what is “right”, and to apply slippery concepts like “proportionality”, rather than sticking to strictly legal issues, we need to know their politics.
For example, we might want to know, before appointing them, what Lord Kerr and others think about immigration. Do they tend to put the rights of British citizens above or below those of people coming into this country for the first time? Are they for or against membership of the European Union? What about a sugar tax, fox-hunting, assisted dying? After all, if they can make up the law, their opinions on almost any controversial issue will matter.

Needless to say, I don’t have a chance of getting that appointments job. If you study its practice, you will find that the usual suspects appoint the usual suspects. The effective removal of the Lord Chancellor from the process (in the name of political impartiality), far from opening up the field, has made the judiciary an even tighter club.

It should not be too late to restore the respect in which judges have long been held in this country, by narrowing their scope.
But I do wonder how much longer this system can last. We are moving towards an American arrangement by which judges change the law in ways they want by wrenching very broad principles of rights to fit particular cases. Thus, Article 8 of the European Convention – the right to a private life – is invoked here in assisted dying cases to give people the right to death. In the United States (Roe v. Wade) 40 years ago, abortion was imposed across the whole country by asserting a right to privacy. The consequence, in America, is that all senior judicial appointments are intensely political. Everyone knows which judges are liberal, which conservative, and the parties fight incessantly to get the “right” ones on to the court. This system is an affront to impartial justice, but it is the inevitable, semi-democratic remedy if you turn judges into the masters of the state. That is the way things are going here.

So please could we stop? It should not be too late to restore the respect in which judges have long been held in this country, by narrowing their scope. In a brilliant lecture this week, the world’s leading legal philosopher, Professor John Finnis, reminded us that “Just as the Rule of Law is not the rule of judges … so too judicial power is not a power to remake the constitution.” He warned against the growing tendency of judges to allow the vital concept of “judicial independence” to slide into the notion that judges should feel superior to the will of Parliament.

Until now, British citizens have had the inestimable benefit of not having to scrutinise who our senior judges are, because we have trusted them to stick to their vital but confined professional task.

Judges, Prof Finnis pointed out, deal with individual cases, and lack the ability to look at the wider consequences of policy decisions in the way that Parliament does. They are unaccountable for their actions. They should not preen themselves that majorities are automatically wrong and they are a brilliant caste which is automatically right. “Judicial independence” should also mean, he suggested, the capacity of each judge to be independent of his or her fellows, rather than conforming to group-think.
Our Supreme Court (this is me talking here, not Prof Finnis) has only recently been so named. The name indicates that it is the highest court in the land. It is not supposed to mean that it is supreme over our system of parliamentary democracy.
On the continent, a system has long prevailed which sees the law as the assertion and implementation of universal, codified principles. And since the Second World War, partly out of memories of dictatorship, but also because of a lack of faith in representative government, this system has equipped “constitutional courts” to rule over elected parliaments. In the continental model – which stands behind the European Court of Human Rights, the European Court of Justice and indeed the entire structure of the European Union – the law does not arise from the habits of people living together in a self-governed free nation, but from a pseudo-religious concept of the Rights of Man.

Against this, England (Scotland is not the same) has something quite different. It is called the Common Law. Because we developed and spread it, it remains the basis for the law of more than two billion people across the globe today. It is called “Common” for the same reason that the House of Commons is so named. It is common to us, in virtue of being the English people. Our law and our Parliament belonged to us, but now they sort of half don’t. This will be a consideration, to put it very mildly, when Mr Cameron lets us vote on our constitutional future in 2017.

All hail the Commoner.

And by the way, when he says the Scots do things differently, he means that the Code Civil and the Tribunal have been the Scots standard for centuries.  And, as a Scot, that isn't a good thing.  Double Jeopardy and never being declared guilt free are the results of a system that allows for the Judge to call for a Not Proven verdict - which means you can be brought back to trial on your deathbed if new evidence is adduced.

 

[Eaglelord17]

I have always been a fan of the phrase 'Not Proven' simply because 'Not Guilty' is in some cases is a lie.

Just because they couldn't prove you committed the crime, doesn't mean you did not commit the crime.

 

[Tibbson]

I have always been a fan of the phrase 'Not Proven' simply because 'Not Guilty' is in some cases is a lie.

Just because they couldn't prove you committed the crime, doesn't mean you did not commit the crime.

Agreed,  "Not Guilty" or "Not Proven" has never equalled Innocent. 

 

[Furniture]

I have always been a fan of the phrase 'Not Proven' simply because 'Not Guilty' is in some cases is a lie.

Just because they couldn't prove you committed the crime, doesn't mean you did not commit the crime.

The last person who claimed to be totally innocent was hung on a cross a few thousand years ago...

If there is really just an insufficent case to convict someone the court to my knowledge usually does a "stay" of charges, which is not the same as being not guilty.

 

[Edward Campbell]

Just to be a bit contrarian, I prefer the simplicity of Guilty, beyond a reasonable doubt, and Not Guilty. The state is a massive and monstrous thing; it has enormous power to investigate and charge ... if it cannot prove guilt, beyond a reasonable doubt, then someone, the person charged, is Not Guilty, period. Not Proven is just a screen behind which the state can hide and say, "see, I wasn't wrong, was I?" If the state cannot prove it's case, beyond a reasonable doubt, then it was WRONG to have brought charges in the first place. Anyway, Not Guilty ≠ Innocent, it just means that the state, despite all its power and resources, couldn't prove something.

 

[Halifax Tar]

I do find it peculiar that the people of the country can, democratically, pass legislation or policy only to then have it struck down by undemocratically buy undemocratically appointed judges. 

Why even have an HOC if the people can't be trusted ?

 

[Kirkhill]

Just to be a bit contrarian, I prefer the simplicity of Guilty, beyond a reasonable doubt, and Not Guilty. The state is a massive and monstrous thing; it has enormous power to investigate and charge ... if it cannot prove guilt, beyond a reasonable doubt, then someone, the person charged, is Not Guilty, period. Not Proven is just a screen behind which the state can hide and say, "see, I wasn't wrong, was I?" If the state cannot prove it's case, beyond a reasonable doubt, then it was WRONG to have brought charges in the first place. Anyway, Not Guilty ≠ Innocent, it just means that the state, despite all its power and resources, couldn't prove something.

And that mirrors my belief exactly.  From the Law Enforcement side it is easy to understand the attraction.  From the personal liberty side I prefer the clarity of Not Guilty. That is a clear signal to the community at large that the State finds no compelling reason not to trust this individual and must treat them as any other ordinary citizen.

 

[Edward Campbell]

I do find it peculiar that the people of the country can, democratically, pass legislation or policy only to then have it struck down by undemocratically buy undemocratically appointed judges. 

Why even have an HOC if the people can't be trusted ?

We elect legislators for a whole host of reasons, being smart enough to craft constitutional laws is pretty low on the totem pole.

The courts protect us from ideology.

 

[Halifax Tar]

We elect legislators for a whole host of reasons, being smart enough to craft constitutional laws is pretty low on the totem pole.

The courts protect us from ideology.

I agree that is their intended purpose but when it collides violently with their personal political beliefs can they really be acting in their intended role anymore ?  Or are the actually shaping policy and law on their own whim ?

 

[Kirkhill]

We elect legislators for a whole host of reasons, being smart enough to craft constitutional laws is pretty low on the totem pole.

The courts protect us from ideology.

Here I disagree. The Supreme Court is an ideologically driven institution. It is reflective of the distrust of the mob that has defined European thinking since the "Whore of Babylon" lived in Babylon - ie forever. 

Ever since the wars of the reformation in Europe the power base has been looking for a way to control the mob.  Their last line of defence was the Courts and the Codified Constitution.  That had the authority of the Church and the Bible that it has largely replaced.  Now it is not the Pope who makes kings and princes, for a fee, but the Courts.

The Huguenots, the Dutch, the Scots, the Puritans, Jean Calvin, Coligny, Jeanne d'Albret, John Knox, Oliver Cromwell... These are the people that the Supreme Courts are created to defy.  The people that empowered the mob and set them in the Pope's place as arbiters of kings and princes by putting them in parliament with sovereign powers.

While the parliament may be faddish in its ideology the Supreme Court is entirely and fixedly ideological.  And I prefer the modishness of the mob to the eternal verities of a Supreme Court and a Constitution.   

Witch burnings may happen from time to time under mob rule but what about when they are codified?

Parliament, and the declaration that no parliament can make a law which cannot be undone by another parliament, ensures against that.

Give me mob rule.

 

[George Wallace]

Just to be a bit contrarian, I prefer the simplicity of Guilty, beyond a reasonable doubt, and Not Guilty. The state is a massive and monstrous thing; it has enormous power to investigate and charge ... if it cannot prove guilt, beyond a reasonable doubt, then someone, the person charged, is Not Guilty, period. Not Proven is just a screen behind which the state can hide and say, "see, I wasn't wrong, was I?" If the state cannot prove it's case, beyond a reasonable doubt, then it was WRONG to have brought charges in the first place. Anyway, Not Guilty ≠ Innocent, it just means that the state, despite all its power and resources, couldn't prove something.

There are only two sides to the "Scales of Justice".  The scales can not accept more than two.

 

[Halifax Tar]

Here I disagree. The Supreme Court is an ideologically driven institution. It is reflective of the distrust of the mob that has defined European thinking since the "***** of Babylon" lived in Babylon - ie forever. 

Ever since the wars of the reformation in Europe the power base has been looking for a way to control the mob.  Their last line of defence was the Courts and the Codified Constitution.  That had the authority of the Church and the Bible that it has largely replaced.  Now it is not the Pope who makes kings and princes, for a fee, but the Courts.

The Huguenots, the Dutch, the Scots, the Puritans, Jean Calvin, Coligny, Jeanne d'Albret, John Knox, Oliver Cromwell... These are the people that the Supreme Courts are created to defy.  The people that empowered the mob and set them in the Pope's place as arbiters of kings and princes by putting them in parliament with sovereign powers.

While the parliament may be faddish in its ideology the Supreme Court is entirely and fixedly ideological.  And I prefer the modishness of the mob to the eternal verities of a Supreme Court and a Constitution.   

Witch burnings may happen from time to time under mob rule but what about when they are codified?

Parliament, and the declaration that no parliament can make a law which cannot be undone by another parliament, ensures against that.

Give me mob rule.

I see our Gaelic lineage aligns here Scotsman. 

 

[Oldgateboatdriver]

Chris, you must be Scottish to love clan ... I mean mob rule  ;D

Seriously though, I find it funny that some people have problem with the Supreme Court because it rules against some laws of Parliament based on the Charter of Rights that was ensconced in our constitution, while they did not appear to have problems with their decisions before that.

The role of the Supreme Court hasn't changed since the Constitution was repatriated: It is still to interpret and apply the law of the land.

In Canada, our Supreme Court is NOT a constitutional court only. It renders decisions in criminal matters, being the final arbiter of the most serious offences (murder, treason, etc.), it hears numerous commercial and civil cases, with a view to unifying the application of common law across all the provinces. In all of these matters, if Parliament does not like the resulting situation, they are absolutely free to pass legislation to reset the law to what Parliament feels should be the rule and the Supreme Court won't strike that down.

It does hear matters where the Charter leads to striking down existing legislation. But again, the Supreme Court did not adopt or write that Constitution, with its Charter, the Legislators did. And they gave themselves the limitation on how to go about changing it. So don't go blaming the Court for applying the law of the land that the Legislators adopted themselves. And if changing the Constitution is difficult when you don't like the interpretation of the Supremes, then the Legislators only have themselves to blame for making it that hard. Then again just perhaps that was the result of a political compromise.

And BTW, mob rule inevitably leads to serious abuse of minorities. There just ain't no cases out there where it didn't. I don't like mob rule.

 

[Kirkhill]

Chris, you must be Scottish to love clan ... I mean mob rule  ;D

Seriously though, I find it funny that some people have problem with the Supreme Court because it rules against some laws of Parliament based on the Charter of Rights that was ensconced in our constitution, while they did not appear to have problems with their decisions before that.

The role of the Supreme Court hasn't changed since the Constitution was repatriated: It is still to interpret and apply the law of the land.

In Canada, our Supreme Court is NOT a constitutional court only. It renders decisions in criminal matters, being the final arbiter of the most serious offences (murder, treason, etc.), it hears numerous commercial and civil cases, with a view to unifying the application of common law across all the provinces. In all of these matters, if Parliament does not like the resulting situation, they are absolutely free to pass legislation to reset the law to what Parliament feels should be the rule and the Supreme Court won't strike that down.

It does hear matters where the Charter leads to striking down existing legislation. But again, the Supreme Court did not adopt or write that Constitution, with its Charter, the Legislators did. And they gave themselves the limitation on how to go about changing it. So don't go blaming the Court for applying the law of the land that the Legislators adopted themselves. And if changing the Constitution is difficult when you don't like the interpretation of the Supremes, then the Legislators only have themselves to blame for making it that hard. Then again just perhaps that was the result of a political compromise.

And BTW, mob rule inevitably leads to serious abuse of minorities. There sustain't no cases out there where it didn't. I don't like mob rule.

I am Scots, and English (so I prefer British these days).  And the Celtic predilection for Tanistry may indeed  influence my thinking. Kings were elected from contenders and successors appointed in advance - and women had power in their own right and could be queen.  (And losing contenders were judicially slaughtered before the altar as in the case of Bruce and the Comyn).

Arguing that the Supreme Court is both a Constitutional Court AND a Common Law court of final appeal does not make my heart any fonder.  In fact it is an aggravation where a single body can both define the law and apply the law.  And the Supremes have already amply demonstrated a willingness to keep striking down laws created by Parliament until they get the one they want.  This is not democracy.

I agree with you on the Constitution.  It was decided by Parliament.  And under the auspices of Parliamentary Sovereignty Parliament has a right to strike it down and replace it with whatever it sees fit.  No Parliament is bound by the decisions of their predecessors.

And BTW, Monarchs, Autarchs, Popes and Republics, none of them have been notable in their sustained protection of minorities - save for one minority - the self-defined elite that seeks power.

I still prefer the chaos of the mob.

 

[Edward Campbell]

My affection for the courts goes all the way back to Henry II. The courts unified the kingdom under one, sensible (understood) rule of law, and "freed" the people from the whims of local overlords.

I agree with OGBD; much as I am not a fan of the Charter or of the whole written Constitution for that matter, I think the Supremes are, broadly and generally, non-ideological and fair in their work, and, I repeat, a defence against the whims of parliamentarians.

 

[Kirkhill]

My affection for the courts goes all the way back to Henry II. The courts unified the kingdom under one, sensible (understood) rule of law, and "freed" the people from the whims of local overlords.

I agree with OGBD; much as I am not a fan of the Charter or of the whole written Constitution for that matter, I think the Supremes are, broadly and generally, non-ideological and fair in their work, and, I repeat, a defence against the whims of parliamentarians.

Henry and Eleanor did a fine job of creating an institution and generally populated it with a useful class of bodies.  Bodies picked from the general population. I don't even mind that the judges are self-selecting as a class (Prime Ministers and Monarchs notwithstanding). I too like the Courts as a check on Parliament.  But I will not budge on Parliamentary Supremacy.

I prefer the Courts as a sea anchor - and not a rock.  A little bit of drag, a little bit of friction, is good in any control system.  Being tied to a fixed point is not a recipe for success.

 

[Privateer]

Wherever boundaries are set on the exercise of power, there will need to be somebody (or some body) that decides whether an exercise of power has exceeded that boundary, such that it is invalid: "ultra vires", being the legal term - beyond one's authority.

Canada was different from the UK right from the start, being a federation where the different governments (provincial / federal) had their own set of sovereign powers; boundaries beyond which any attempt to legislate would be ultra vires.  And the courts were the bodies that decided whether a particular attempt to legislate was ultra vires the government in question.  The courts struck down laws on the basis of division of powers right from confederation.  The "court" with the final say originally wasn't Canadian:  It was the UK Judicial Committee of the Privy Council (aka. the Law Lords, acting in a different capacity).  The Supreme Court of Canada only got the final saw later on (with civil appeals ending in 1949, though later decisions followed for cases already "in the system").

(Side note: Remember the famous "persons case", which held that women can sit in the senate and that the constitution is a "living tree"?  That was a decision of the JCPC.  The Supreme Court of Canada had held that women could not sit as senators, but was reversed on appeal to the JCPC.)

Even in the age of the Charter, if you want a law struck down and you can get there on a division of powers argument, you go that route, as there is no equivalent to a Charter section 1 saving clause: If the law is ultra vires your set of powers, there is no saving it.

Through the Charter, the governments (save Quebec?) chose to draw additional boundaries on the exercise of their powers.  You need some body to decide whether the line is crossed, and that job fell to the Canadian courts that had already been judging the validity of Canadian federal and provincial laws since the beginning.

Also remember that the Charter was brought in, in part, because the Supreme Court of Canada essentially refused the invitation to strike down federal laws through the Canadian Bill of Rights, which was federal legislation. 

The process of courts striking down the laws of Parliament and the legislatures has been with us from the start.  It is an inherent aspect of our federal system.

 

[Kirkhill]

Absolutely agree Privateer - The courts have been the supreme adjudicator in Canada - which is related to the 2iC being the Chief Justice when the GG is incapacitated.

But what you have just described is the situation that led to the American Revolution.  In Britain, Parliament was supreme.

In the colonies the Courts were supreme. 

GGs and Viceroys were bound by British law, as enacted by Parliament in the UK.  They adjudicated over colonial law and took under advisement the suggestions of the locals.

If Canada were to be equal to Britain then Canadian Parliamentarians would be Sovereign in Canada.

But time has moved on - and the Brits are subservient to Europe and Canada is subservient to the Courts.