Justice is blind, not a voyeur.

Getting quickly back on to theme of deliberate misreporting – and of the current tabloid hot ticket, ‘feral youth’ – we find the Daily Mail in full spittle-flecked fury mode over the ruling by an Immigration and Asylum Tribunal that Learco Chindamo cannot be deported on his release from custody for the murder of Phillip Lawrence:-

When ‘human rights’ are an insult to us all

There cannot be a decent human being who does not share her pain and disgust at what Britain has become: a land where the ‘rights’ of a killer are exalted, where crime victims matter not a jot and where a remote tribunal tramples over every sense of morality and self-respect.

The case of Learco Chindamo insults us all. A violent, truanting 15-year-old, he stabbed Mr Lawrence just for trying to stop the bullying of a younger boy.

Now that this squalid undesirable is ending his 12-year sentence, he should in the public interest be automatically deported to his father’s homeland, Italy.

Well I guess this means that I’m just not a decent human being in the Mail’s estimation because neither its by the numbers ranting or the obligatory entreaties of the distraught widow:

Mrs Lawrence said: “I am devastated, demoralised. More than that, I’m unutterably depressed that the Human Rights Act has failed to encompass the rights of my family to lead a safe, secure and happy life.

“I have always been a staunch advocate of the Human Rights Act but there is a missing term in it. It must encompass some responsibility.

“This isn’t just about me and my family. I am not solely thinking of me. I may be a mother but I am a human being as well. I feel I can’t fight any more. I feel I can’t survive this.”

… are sufficient to prompt this blogger into an unseemly bout of vicarious emoting over the High Court’s decision or the hurt feelings of Lawrence’s widow.

As is perennially the case, the headline used in the Mail’s online coverage of the story, ‘Widow’s fury as thug who knifed to death headteacher is allowed to stay in the UK’ is supplanted in it’s print edition by the altogether pithier and more overblown, ‘What About My Family’s Rights?’:-

mail-238.jpg

To which the answer, as ever, is that you’ve already had them.

Chindamo was caught, tried, convicted and has served (almost) the sentence handed down by the court, and while one can always quibble about whether the sentence was long enough – remembering that for the victim (or their family) it almost always isn’t no matter what the court hands down – the fact of the matter is that that’s your lot; the criminal justice system has discharged its obligations to you once the offender has served out their sentence give or take any post-incarceration conditions that may be applied in cases such as this one where, as a murderer, Chindamo will be released under licence.

The Mail quotes Mrs Lawrence as having advanced the usual trite observation:

But she stressed that the law “bypasses humanity” and fails to take into account the views of “ordinary people”.

Does no one ever wonder if there might be a tangible reason why rulings handed down by courts/tribunals sometimes appear to deviate from what is presumed to be ‘public opinion’?

In fact there’s a very good reason for this; this being simply that these bodies deal with the full material facts in such cases, facts that are all too often omitted or downplayed in the media coverage of such cases, upon which the public has to judge the merits of their decision.

Thus the Mail initially informs its readers that:

Chindamo, son of a vicious Italian gangster and a woman from the Philippines, came to the UK at the age of six.

Which is certainly true, but some considerable way short of the full truth, which the Mail discloses only towards the end of the article and after its has fully vented its spleen:

Born the son of a Mafia hitman known as the Acid Man, Learco Chindamo seemed almost destined for a life of violence.

His mother Paquita split from her husband Massimo [and subsequently moved the UK after a brief period living in her native Philippines] after he threw her out of a window, breaking both her legs.

Little wonder, then, that Chindamo is reportedly unable to speak Italian, for all that the Mail pours scorn on this line of argument in its editorial:

But not in the view of the Asylum and Immigration Tribunal. These worthies decreed that it would be a breach of his human rights to be sent to that free, sunny, civilised EU nation because, among other things, he can’t speak Italian.

The ‘amongst other things’ in the case would presumably be the fact that Chindamo has had no contact with his Mafioso father or other members of the Italian branch of family since his mother came to the UK in 1988 to escape from her violent husband, and no matter how clement the weather might be in Italy one doubts that this would prove to be much consolation should Chindamo be dumped in what, to him, is an entirely foreign country, where he doesn’t speak the language and where he can have little or no expectation of picking up the threads of his life. in complete isolation from his mother and siblings, who constitute his only real family.

Unless the Mail would like to see his family deported as well, to keep him company – and never mind the risk of violence towards his mother should she be found by the boy’s father.

Its these little details that make all the difference, for all the Mail would like to pretend that they don’t exist or have no bearing on the decision of the High Court.

Picking up on the BBC’s coverage of the story we find that another minor detail has escaped the Mail’s attention:

The human rights lawyer David Enright said on Monday that under the current rules, it was impossible for people to be deported from one EU country to another.

Chindamo came to the UK when he was six. His father is Italian, his mother is from the Philippines and he has an Italian passport.

Mr Enright also dismissed the government’s protests as “posturing”, saying it had accepted the 2006 European Commission regulation into British law.

“(This) said that any EU national who had lived in the UK, even in prison, for more than 10 years, could only be removed from Britain on imperative grounds of national security – which clearly would not include Mr Chindamo or anyone like him,” he added.

So this is not just a matter of the general application of article 8 of the Human Rights Act, but one specifically covered by regulations on deportation set by the EU and incorporated into UK law more than a year ago. Hardly the most persuasive argument for the Mail and its right-wing readership but it does seem to conclusively settle the matter in terms of the legality of the decision and the scope – or lack thereof – for a government appeal in this case.

There’s a tidy little dilemma for the fiscally parsimonious right. Which is more important to them? Making a show of mounting a futile legal challenge to a decision that is politically inconvenient but legally correct, or saving a bit of taxpayers’ money by not embarking on futile litigation of a kind that is doomed to failure from the outset?

That we are debating this at all is merely a function of the Chindamo family never having taken the opportunity to become naturalised British citizens as was certainly possible up to the point at which Learco committed this offence, and why would or should they have considered such a move when under the EU’s freedom of movement/residency regulations the Italian passport obtained by her marriage to Learco’s father was good enough to permit them to build a life for themselves in the UK. Had they taken out British passports, or were Chindamo merely a common or garden domestic murderer and not one with the added frisson of an Italian passport this debate would, at best, revolve around whether the sentence of twelve years, handed down in 1996, was sufficient to fit the crime – and its well worth noting that unlike the vast majority of adult murderers, Chindamo appears to served out his sentence in full and with no remission.

But for his holding an Italian passport, Learco Chindamo would be released on licence at the end of his sentence as a matter of routine and although the profile of his case would certainly generate some media interest – and the usual bleating from the press about how sentences for murder aren’t long enough – such interest would be short-lived and, no doubt, curtailed by court-imposed restrictions designed to give the young man the best possible chance of putting his crime behind him and rebuilding a life as a useful, and reformed, member of society. Rehabilitation is, after all, part of the core purpose of the criminal justice system.

The public interest in this case, such as it is, rests squarely in the question of whether Learco Chindamo is, as he claims, a reformed character bent on rebuilding his life on his release – and the Mail does report that he has gained an NVQ in health and social care while in prison and plans to seek a career in nursing (cue yet more scare stories about ex-criminals gaining jobs in the health sector) – or whether he still constitutes a risk to public safety, this being a question for those in criminal justice system who are dealing with the practicalities of impending release. The personal feelings of Mrs Lawrence and her family are, frankly, of no consequence but for the matter of applying licence terms to Chindamo’s release designed to circumvent the possibility of his coming into direct contact with the family as a matter of basic compassion.

Beyond that, the Mail’s reporting of this story amounts to little more than the usual tabloid diet of unrestrained voyeurism, which invites its readers to indulge in the vicarious and unproductive emotional fetishising of victimhood as a means of generating sales. While the Mail may contend that ‘there cannot be a decent human being who does not share her pain and disgust at what Britain has become’ the reality is that there cannot be an honest human being who does not recognise that, in this case, the criminal justice system has done its job and served outs its purpose in full nor and independently-minded human being who fails to see the Mail’s reporting of this case for what it truly, no more than a cynical effort to manipulate the prejudices of its readers in order to generate sales.

In cases such as this one, opportunism knows no bounds, hence no such story is complete without its coterie of bandwagon jumpers:

Shadow Home Secretary David Davis said last night: “It is a stark demonstration of the clumsy incompetence of the Government’s human rights legislation that we are unable to send a proven killer back to his own country, especially when that country is in the EU.”

Comments like this are, in reality, a stark demonstration of the clumsy incompetence of politicians in situations where political expediency and naked populism are thought more productive than the correct application of justice.

Once one understands the full background of the case and the history of the Chindamo family then in no realistic or honest sense can one argue that Italy is Leano Chindamo’s ‘own country’. We’re not dealing here with an individual who was born and brought up overseas and who came to Britain as an adult and of his own choice and volition but with someone who came to the UK as a young child in train with a mother escaping extreme violence. He had no choice is coming here and, like or not, Britain is the only country he knows and has provided the only life he knows, for all that he has spent the last eleven years of that life in prison.

Far from being ‘clumsy’, the Human Rights Acts requires the courts to consider cases, such as this one, on their individual merits and on the material facts at hand, as has long been one of the overriding principles of British justice.

What is actually clumsy here, not to mention crude and ill-conceived, is the politician’s marked preference, in the fact of media pressure, for ‘soundbite’ justice, which manifests itself in this case as the notion that ‘foreign criminals’ should be automatically deported on release irrespective of their individual circumstance or the nature of the offence for which the individual was convicted. Follow the arguments of the likes of David Davis (and the Daily Mail) to their logical conclusion and we arrive rapidly at a situation where we start deporting people for speeding or parking offences on non-payment of their television licence, all of which are, strictly speaking, criminal offences.

Alan Gordon, vice-chairman of the Police Federation, branded the decision “absolute madness”.

Well of course he did – you didn’t expect this kind of story to pass without at least one ‘it’s all gone mad’ comment.

He said: “What about the human rights of Philip Lawrence, robbed of his life or the human rights of his wife and children, deprived of a loving husband and father. I don’t suppose Mr Chindamo had any regard for them.”

Alan Gordon may be, quite obviously, politicking here but one still cannot help but be alarmed by the obvious ignorance of his remarks. As Gordon should know full well, human rights legislation operates within a quite specific context, that of the relationship between the citizen and the state, not that of the relationship between individual citizens.

This is an all-too-seductive and deeply dangerous line of argument, one that sets up a false dichotomy between the rights of those convicted of a criminal offence and the right of ordinary citizens and, especially, those citizens who become victims of crime and advances the idea that that the rights we accord to criminals should be somehow different to and of a lesser status than the rights enjoyed by the rest of society where, in reality, the true position is that such rights belong to us all equally and that, in the case of convicted criminals, only certain rights – particularly the right to physical liberty – may be temporarily curtailed under judicial authority as a sanction for their criminal conduct.

This false dichotomy lies at the root of the political propaganda that has been used to justified pretty much every piece of illiberal legislation and every curtailment of civil liberties undertaken by the government over the last ten years and more – with some justification one can point to the watering down of the right to silence in the Criminal Justice Act 1994, piloted through the House of Commons by Michael Howard, as being the legislative starting point for the UK government’s long-term assault on civil liberties.

In terms of human rights and their application in British society the central issue in this case is not that of a supposed, and entirely artificial, ‘conflict’ between the rights of a criminal, and a ‘foreign’ criminal at that, and the rights of his victims family but the general and, I would argue inalienable right, of any individual to have their case heard and determined within the criminal justice (and immigration) system on the basis of its individual merits and by way of the due process of law, rather on the basis of crude and arbitrary ‘rules’ derived from nothing more than political expediency.

That the police appear constantly to prefer the latter rather than the former should be a matter of the greatest concern to all of us.

Finally on the list of bandwagon jumpers, and giving Iain Dale’s trite intervention the full regard it merits – none – we come to the most usual of suspects in such cases:

Sir Andrew Green, chairman of Migrationwatch UK, said: “This is yet another case where the human rights of the criminal seem to be overriding. The short answer is to pull out of the European Convention on Human Rights, as we are entitled to do, and write our own human rights law.”

One only has to understand the historical background to the European Convention on Human Rights, which was written by, in main, British lawyers working to well-established British legal principle and steered through the newly created Council of Europe by a, then, former British Prime Minister – Sir Winston Churchill, no less – to appreciate the full extent to which Green and his tawdry little pressure group are a bunch of complete idiots.

To all intents and purposes and by virtue of the manner and circumstances in which it was drafted, ECHR is our own human rights law – far more so than it is a European law for all that it was first agreed and enacted in Europe rather than in the UK. But for the provisions in article 14, covering discrimination, there is nothing in the core articles of ECHR for which one will not find established precedent in British statute or common law, much of which long predates the adoption of ECHR in 1950. Indeed, if one looks at the precise wording of the articles one quickly finds that they are expressed in terms far more in keeping with the British system of common law jurisdiction than with European conventions derived from the Napoleonic civil code, for all it allows other countries sufficient ‘wiggle room’ to operate their traditional civil code systems.

It is frankly absurd, and a complete, deliberate and largely xenophobic fiction to suggest that the principles set out in the Human Rights Act amount to some sort of alien imposition on UK law, let alone an unwelcome one – what could be more British in character than the principle central to the Chindamo case, that which holds that individuals have the right to a private and family life free from unwarranted, unnecessary and unlawful interference by the state? That such principles, when applied to specific cases, occasionally throw up outcomes that are politically inconvenient or that attract the ire of the unashamedly populist tabloid press, merely demonstrates that, overall, the judicial system is operating as it should in considering cases on their individual merits and applying the law as it is either written, or as it has evolved by means of judicial precedent where decisions, of necessity, need to fall back on the common law.

As noted earlier, but for his possessing an Italian passport, the possibility of deporting Learco Chindamo would simply not arise, and against the material facts of his background and upbringing in the UK the fact that he does hold an Italian passport is entirely immaterial. Having lived with his mother and siblings in the UK from the age of six, at the age of twenty six (or maybe twenty seven) Learco Chindamo is British in everything but name and regardless of the heinous nature of the crime he committed, to seek to deport him on release is a complete nonsense, not to mention a perversion of the long-standing traditions of the British justice system.

  • Old Sailor

    Sorry Unity, for once I must disagree with you. There is an old saying in the criminal fraternity ” If you cant do the time, dont do the crime”.

    With rights come responsibilities, Leano Chindamo chose not to acept the responsibilities of UK residents when he stabbed his victim.

    Pleas of mitigation because a a violent criminal father are only pleas , not evidence, not excuses, and certainly not justification for the crime.

    I fail to see their relevence when as you state he has not seen this father since he was six.

    I certainly can not belive that he is unable to speak Italian, or Spanish, if his mother was from the Phillipines.

    Leano Chindamo has repudiated the social contract between himself and British Society, and must suffer the consequences of his own actions, if the Parol Board release him on license.

  • Old Sailor,

    What is your justification for rights and responsibilities? If you cannot fulfil your responsibilities, do you lose your rights? Do those responsibilities include voting? What are the limits to this contract? If, through no fault of your own, you are unable to fulfil these responsibilities, do you lose some or all of your rights?

    Does the fact that Chindamo (a boy, without full rights or responsibilities) failed in his responsibilities once mean that he loses all rights forever? Does the same apply to Brits?

    Actually, pleas of mitigation have to have evidence to support them. They were not presented as a justification, merely as mitigating, er, evidence.

    The relevance should be obvious – if Chindamo was mistreated by his father to the age of six, he could well have been ‘damaged’ by the experience.

    As to your comment:

    “I certainly can not belive that he is unable to speak Italian, or Spanish, if his mother was from the Phillipines.”

    I have to disagree. If he has not had the opportunity to speak Italian since the age of six – twenty years ago – he might well not be able to speak it any more. The most common language in the Phillipines is Tagalog (with about twenty-two million speakers) while Spanish is spoken by about 2,900,000. http://en.wikipedia.org/wiki/Spanish_in_the_Philippines#Decline_of_the_Spanish_language

    Could you present one fact that supports your assertion that he can speak Italian?

    xD.

  • 1. Chindamo has done the time – 12 years at least by the time he could be released on licence, which is not a certainty at the moment as he’s yet to go before the parole board. You can legitimately argue about whether the sentence itself was long enough, but not that he hasn’t served it out in full.

    2. In what sense is not stabbing people a responsibility of UK residents? The general idea that you don’t go round murdering people is a pretty universal one, certainly anywhere that operates under the rule of law.

    3. The point about his father/background is simply to illustrate the fact that he’s lived in the UK since the age of six, and appears to have left Italy at the age of four, and that under the circumstances in which his mother left his father, he has no family in Italy to speak of and no roots in the country.

    That’s not mitigation for his crime, and certainly not justification (and whatever his distant background, the environment in which he grew up to be a criminal was entirely a British one), merely an illustration of the absurdity of trying to deport the guy to country with which he has no substantive connections. As for whether he speaks Italian or Spanish, it’s perfectly reasonable to assume that he speaks little or no Italian given that he appears to have left Italy at the age of four and with a Filipino mother its highly unlikely that Italian was spoken in the family home while he was growing up, and if he can speak Spanish (or Tagalog, as Dave has noted), so what – it not like that’s going to be of much use to him if he’s deported to Italy, is it?

    As I said, the guy is British in everything but name by virtue of his being brought up in this country from the age of six, irrespective of the nationality cited on his passport and while by his actions he may have repudiated the social contract in committing the crime he has served out the judicially mandated punishment for his actions in full – he’s already suffered the consequences of his actions such that deportation amounts to punishing him twice for a single offence, something that has never been part of British justice.

  • Lee

    In response to “Old Sailor”.

    1. He did the crime, and he’s done the time that a court decided that he should do.

    2. As Unity says, the human rights act is regarding how the state treats its people, not how people treat its people…that’s what other laws are there for, the laws that meant he went to prison.

    3. From the sounds of what his own defence team have posted you’re right, it would appear that it was a plea (and never a justification for the crime, you seem to be reading imaginary words now) that was added onto the stone cold enshrined and accepted UK law that no-one living here for over 10 years can be deported to another EU country. The guy was more British than Italian before he even committed the crime anyway.

    4. Exactly, he’s not seen his father since he was 6, mostly because he’s only really Italian by heritage in all reasonable views.

    5. Oh..because *you* don’t believe he can’t speak another language it must be a big lie. I personally believe that he is reformed and is in fact going to discover the cure to cancer with equal amounts of baselessness. *rolls eyes*

    6. No, he repudiated his contract when he committed the crime, he then did his time, in the British system of rehabilitating criminals so that they will hopefully not reoffend and be able to rejoin society as a productive member of British society…thus getting a whole knew social contract with it. If you have a problem with this then go and live somewhere where the legal system is perhaps a little more unreasonable to its prisoners if it makes you, as with Mr Lawrences widow, safer. However wouldn’t it be interesting to compare the human rights of “innocent” citizens in those countries where the human rights of their prisoners are so woeful?

    Something tells me that if you had any real knowledge about how reasonable this countries human rights system is compared to those countries with systems you seemingly wish to adopt then you would be retreating curtly from this subject with your tail between your legs.

  • Lee

    I think it’s also interesting to note what was said on this subject on the More4 news last night. I can’t remember who the person televised was, but she made an amazingly good point about how this person is being demonised with little or no knowledge of his rehabilitation, as well as prompting the usual stories of “If he had a father…” and “blacks in the wrong crowd…”, while the white “youths” that killed the man that came out to stop their vandalism have had no such tabloid level outcry about their upbringing. She obviously tied it to racism, and it would seem the obvious explaination, but it also brought another point to my mind.

    The news lauded over and over about the windows “rights” and how she no longer feels safe…a completely idiotic statement to make given that there are murderers, rapists and other ex-criminals that have used severe physical or mental abuse on people coming out of prison up and down the UK all the time. Apparently she feels perfectly safe as long as she doesn’t know the people are coming out after being (supposedly) rehabilitated!

  • Old Sailor

    To reply.

    1/. Language – So how did he communicate with either parent ?

    2/. Human rights – I have a knowledge of these, and in the main Britain is reasonable, pray tell me what countries am I comparing it to, or indeed want to emulate, or is this something you have invented to justify your own position ? Sounds like Hari to me.

    3/. He has not done the time, the consequences of his action included deportation – Rejection by British Society.

    4/. I have no problem with living in Britain. I have a problem in understanding why I am required to acept Chindamo as a fellow citizen.

  • Old Sailor

    To reply.

    1/. Language – So how did he communicate with either parent ?

    2/. Human rights – I have a knowledge of these, and in the main Britain is reasonable, pray tell me what countries am I comparing it to, or indeed want to emulate, or is this something you have invented to justify your own position ? Sounds like Hari to me.

    3/. He has not done the time, the consequences of his action included deportation – Rejection by British Society.

    4/. I have no problem with living in Britain. I have a problem in understanding why I am required to acept Chindamo as a fellow citizen.

  • Lee

    “I have no problem with living in Britain. I have a problem in understanding why I am required to acept Chindamo as a fellow citizen.”

    The same reason you are required to re-accept any other ex-criminal as a fellow citizen. The consequences of his actions were (as far as I can see) not dictated to be that he would be deported, that was just a given (at the time) as a part of due process. That process now no longer exists, and therefore is no longer part of his “time”.

    “I have a knowledge of these, and in the main Britain is reasonable, pray tell me what countries am I comparing it to, or indeed want to emulate, or is this something you have invented to justify your own position ? Sounds like Hari to me.”

    I didn’t say you were comparing any countries, it’s pretty clear that I was, but it’s clear that jumping to random conclusions is your sort of thing.

  • Old Sailor –

    1. Perhaps they speak English

    2. Lee answered this one… thankyou Lee

    3. Clearly, they did not include deportation as the courts have ruled that this was not legal and therefore not a punishment that could have been handed down legitimately.

    4. I have a problem in understanding why I am required to accept you as a fellow citizen. Please leave. There are lots of people I don’t like; that doesn’t mean they should be deprived of citizenship or residency, any more than a crime committed by a Brit would deprive them of the same.

  • Old Sailor

    Don’t try and pretend to twist words. He should be deported, let Italy and/or the Phillipines deal with thier own problems.

    If Lee and others wish to keep him company, that not my problem.

    And if you do not like my presence in the UK. Remember I dont stab people.

  • Rob

    This man is not a British subject, why should he have an automatic right to live here? My reasoning is that making his home here is not sufficient: no more than if I moved in with you for a few years your home would automatically become mine in any legal sense. No, I would remain a guest; albeit a long time one; but if I set aflame to the house, I would not dare question who should receive the insurance payout.

    You claim that this passport nonsense is irrelevant; a mere technicality: but our society and legal systems exist on technicalities. He is not a British citizen. He is an Italian citizen living abroad; a guest of a foreign nation. If he didn’t like it then he should have thought of that before he murdered an honourable man defending his charge.

    If I broke a vase in my house, I would regrettably have to pay for its replacement. If I broke a vase in your house, I would not only pay for its replacement, but leave as well. I would not claim, “oh but I’ve paid for it now so it’s alright, justice has been done”. The question, in my mind, is not one of “is being deported a question of justice?”, rather, “why would we want to invite this man to stay here any longer?”.

    A good guest knows when he’s outstayed his welcome.

  • Wireman

    Great post, Unity. But it’s Learco, not Leano.

  • Rob,

    The law is that after having spent a period of time here, Chindamo was entitled to remain. That has been supported by the courts. The reasoning is that removing someone to what has become an alien land is a disproportionate penalty; exile has not been a penalty in the UK for some time.

    There is a big difference between a house and a country. A house is private property. A state is not private property; it is a legal entity in and of itself, owned by no-one. Your comparison with a house does not bear out. In any case, breaking a vase in someone else’s house is hardly cause for such shame that you have to leave.

    As to why, if it were a choice that could be made, we would invite him to stay here, I would say that we should do so because he has repented for his crime, is trying to stop people following the same path as him and because it would be cruel and unusual to exile him to a foreign land.

  • Tim

    Just a couple of points here.

    Chindamo was sentenced to life imprisonment – not 12 years. 12 years is the point at which he can apply for parole. If he is such a threat to society that he should be deported, then obviously he shouldn’t ualify for parole. If he qualifies for parole, then he obviously isn’t a threat to society, and shouldn’t be deported.

    On the ECHR, it may have been partly drafted by English lawyers, but it is an inherently continental document in that it requires the judiciary to adjudicate on the legality of laws passed by the Legislature as well as actions of the Executive. In continental systems this is well established thorough constitutional courts. It is not so in the UK, and the English judiciary is ill-equipped for the role.

  • Old Sailor and Rob:

    Legally, Chindamo is now a British citizen. And when he’s served his time in prison and the correct services confirm he’s no longer any threat to society he’ll be released to the country he’s a citizen of, like any other rehabilitated criminal. They’re the laws of this island. If you don’t like the laws then go down to Parliament and demonstrate against them.

  • Tim:

    On the ECHR, it may have been partly drafted by English lawyers, but it is an inherently continental document in that it requires the judiciary to adjudicate on the legality of laws passed by the Legislature as well as actions of the Executive. In continental systems this is well established thorough constitutional courts. It is not so in the UK, and the English judiciary is ill-equipped for the role.

    That’s not strictly true on a number of counts – remember the doctrine of parliamentary soveignty is, itself, merely a convention and only loosely codified in law in the Parliament Act, which deals only with the matter of primacy between the Commons and the Lords.

    In practice, the principle of judicial oversight – which is what we’re talking about here – stretches back in England to the Anglo-Saxon law. Remember, even William the Conqueror was required to swear to uphold and abide by the law of the land in his Coronation oath. In fact one of the key historical difference between England and the Continent is that we’ve never really bought into the whole idea of absolutism.

    The fact is that throughout history, the judiciary have commented on the quality and, and in some cases, legality of laws passed by the legislature, and especially on decisions taken by the executive, by means of both the common law and by reference to those few scraps of constitutional legislation we do possess – as recently as the late 1970’s, Lord Denning cited Magna Carta as authority in ruling the attorney general acted unlawfully in failing to prosecute post office workers for boycotting the delivery of post to certain companies and part of anti-apartheid protest.

    It was, and still is, true that the judiciary cannot strike down statute law, the most it can do is make a declaration of incompatibility with ECHR which the legislature is free to override by statute, albeit potentially at the cost of registering a derogation from part of ECHR, as required by treaty.

    Far from being ill-equipped for this role, our status as a common law jurisdiction makes our judiciary uniquely suited to such a role on the basis that it has a wealth of accumulated precedents and principles to work with.

  • Tim

    If Parliamentary sovereignty is a convention, it’s virtually a definitional one – short of a rehaul of the entire British constitution, and the introduction of a written constitution, it’s impossible for parliaments to bind future parliaments. For a case in point witness the fact that a low key statute relating to parking fines was held to have over-ridden the 1688 Bill of Rights.

    Denning was, in that case as in others, finding the actions of the executive to be unlawful by reference to specific laws – even if the great man did cite Magna Carta. That’s Judicial Review, and there’s a lot of it about. The HRA is the first time that UK judges have had to judge on the legality of laws – rather than the actions of the executive. European judges have been doing that forever – or at least since the writing of their constitutions.

    Where there is a legal document that sets out the limits and sources of Executive power, it makes sense that lawyers and judges should arbiter it. Where there isn’t one, it’s at least arguable that politicians should.

    On absolutism, it’s again arguable that the doctrine of parliamentary sovereignty gives parliament far more power than ever a monarch held

  • If Parliamentary sovereignty is a convention, it

  • Tim

    That’s just it – the power of parliament is a ‘usurpation’ of the power of the monarchy which was derived from God (divine right blah blah blah).

    That’s why having the judiciary decide on the legality of its acts is so difficult – and why the English system has never featured it.

    Actually, of course, the answer is that the theory doesn’t matter, lets get on with the practice. if you want an example of this, look at the various EU cases. Since all European directives/treaties are incorporated in the 1972 Act, all the UK Parliament has to do to derogate from them is to pass conflicting legislation. This has to be the case. Since that’s impractical (and contrary to EU law which states that it overrides UK law, which states that it is impossible for EU law to override UK law while at the same time incorporating the treaty that says it does…) the courts have dealt out great wodges of fudge to try and ignore the issue.

    As so often with English institutions, what is theoretically correct is less important than what works.