Martin Sewell is a Family Lawyer specialising in Child Protection and Adoption and an Anglican Lay Reader. His work puts him in daily contact with the disadvantaged of society who experience the consequences of social policy the most acutely.
On the day that newly appointed Minister for Justice Jack Straw chose to restate his interest in a Bill of Rights, by which Judges would be further empowered to legislate by statutory interpretation, we had an interesting example of how they might choose to exercise those powers.
Idris Francis challenged the legal basis of speed cameras objecting that the requirement for the owner of a vehicle to identify the driver, compromised his “right to silence”.
The European Court decided that holders of driving licences accepted “special rules” which enabled the Prosecuting authorities to overide the normal principle, and justified this by stating that “anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime imposed, because the possession and use of cars was recognised to have the potential to cause grave injury.”
Mr Francis tried to assert that his right to silence was an absolute right, but we are now told, in an exercise of judicial discretion, that it is only a “qualified right” because:
“Those who choose to keep and drive cars could be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, those responsibilities included the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.”
Few of us would argue that motor cars can cause grave injury, and this might have enabled many to assent to the European Judges approach where that risk was real and obvious. However, we all have heard of, or can imagine, circumstances in which a minimal infraction has occurred and the old principle “de minimis non curat lex” (the law is not concerned with trifles) might have sensibly applied.
In asserting that the overriding of a fundamental principle of law can be justified there was no attempt at proportionality. It is not required that the prosecutor show that in the individual case there is a proper need for the overide; there is a blanket casting aside of the right to silence on all such occasions without reference to how grave or trivial the infraction.
Now consider how Judges will apply such human rights decisions in relation to other types of offences. Consider the drug dealer pushing heroin outside of schools: does he have to name his supplier? Evidently not, yet is his offence not capable of causing “grave injury”?
Then there is the murderer released on licence from a life sentence only to be apprehended for a further killing. Is he to be subject to “special rules”? There is an interesting argument there for somebody, but I do not have much optimism that depriving him of his shield against justice will find much favour with our liberal- minded higher judiciary.
Then there is the case of the Illegal immigrant who is found by the High Court Judge reviewing the security evidence, to pose a very real threat of terrorism to the wider populace, and yet cannot be returned to his home country because he risks a harsher regime there than in the country he is happily plotting to destroy. Surely our Judges can find it in their hearts to impose “special rules” for him? Well yes, of course they can, except that their rules are so wafer thin that a third of those subjected to the toughest regime M’luds will impose have absconded already.
Here we have the parentheses of judicial discretion: at the end closest to the ordinary citizen, the erosion of ancient liberties: at other extreme an institutional bias that will be always persuadable on behalf of the deviant, the anti-social, and the plain wicked.
How has this come about?
Mr Straw seeks his Bill of Rights partly upon the basis that it will assist us to assert our “Britishness”. The Americans and French define their identities with reference to their historic documents, and Mr Straw, the first Lord Chancellor with no pretension to legal distinction (or perhaps the second if you count “Charlie” Falconer) believes that we should define our British values in our own similar document.
On the Today programme he pointed out that Israel and New Zealand are the only two other countries without such a document, and thereby overlooked the glaringly obvious point that this might be exactly what makes us distinctive!
We used to have Judges who drew upon the Common Law of England and which was rooted in the English way of life and its values. It served us well and little of the more nonsensical aspect of Human Rights jurisprudence would have got past the old school Judges, well versed in its ways.
Can anyone imagine that the kind of document that will emerge from Mr Straw’s proposals will be other than the most anodyne blandishment that could be found in similar documents from Mexico to Togo? Even the greatest tyrannies have had splendid rhetoric in their written documentation – and much good did it do them!
Part of the problem is that we have had a recent leadership and senior Judiciary that has been Scottish. With due respect to them and their country, Scotland has always had a greater sympathy with European approaches to Law and it is not surprising that the merits of the English way are not so embedded. We are therefore taken further down the European road.
Yet consider how the finest Common Law Judge of the 20th Century, Lord Denning, came to explain the difference of approach when describing how the Treaty of Rome came to be interpreted.
Writing in 1973 he explained:
“It lays down principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the treaty there are gaps and lacunae. These have to be filled by the Judges or by Regulations or directives. It is the European way….”
Mr Francis case, and its contrast with how Judges have treated worse offending, reveals how European Judges approach these matters, however they are not alone.There are similar examples in the United States. One of the reasons for the visceral divide in politics in the USA results from the fact that for forty years, judicial activism has been on the march.
If lawyers are given a source document for interpretation they will proceed incrementally, no sooner achieving one objective than asking “ if the line can be here, why not a little further.. over there?” It is the one way lock- step ratchet by which liberal ideas have distanced the judiciary from the people.
By Judicial activism alone, abortion became considered a Constitutional right and the issue of gay marriage is currently under similar dispute.
Now regardless of your or my individual views on either of these issues, it is difficult to argue in a democracy that such change should be undertaken other than through the processes of the legislature. In America, that which cannot be achieved through the ballot box, is sought through the interpretation of the Constitution.
Few but the rarified Supreme Court and liberal lobbyists seriously believe that the founding fathers of America drew their Constitution in a way calculated to hide away their intention to outlaw public prayer in schools, permit widespread pornography as a form of “free speech, and to enshrine the right to abortion and gay marriage.
The legal fiction is that this is what they intended all along – but it took 200 years before intelligent (political) lawyers discovered it! It is what we lawyers call a legal fiction: others might call it intellectual dishonesty.
The Francis case is of much greater significance than many realise.
It lifts the veil from the consequences of Jack Straw’s plans and reveals the mindset of those who will develop the thinking of whatever Bill of Rights he cobbles together. He will try to sell it to the nation as a Constitutional check upon the executive. I fear it will prove to be an open cheque drawn upon our future liberties, whose real price is unknown and unknowable.
Today unelected Judges invent and impose “Special Rules” for the motorists, tomorrow “Special Rules” for who? Is that truly OK?
Editor’s Note: This article was published this morning under the name Keith Standring when it was in fact written by Martin Sewell. I am very sorry for this mistake and would like to apologise to Keith and to Martin for any inconvenience and embarrassment caused.