Wednesday, May 26, 2010

Behind the scenes at the UK's highest court

(Middlesex Guildhall, London, home of the Supreme Court of the United Kingdom)

Wednesday's highlight was a private tour of the United Kingdom's Supreme Court building from that jovial and energetic fixture on England's crime-fiction scene, Ayo Onatade. (She works for the court when she's not writing for Crime Spree or Shots or judging CWA Dagger competitions.)

Yes, Supreme Court, which the UK has had since October, as part of a move toward a separation of the judicial and legislative branches of government. This was quite naturally of interest to a visitor from the United States, since the separation of powers has been at the heart of American political life since the Founding Fathers borrowed the idea from a Frenchman in the eighteenth century.

The highlight of the tour? Probably seeing the chief justice of a British Commonwealth nation waiting in the lobby to be escorted into the main part of the building. (Ayo got on the phone and made sure he would be shown in promptly.)

Or maybe the gentleman who wandered into Ayo's large, airy shared office space looking like a judge, which is because he was. Yep, he was one of the Supreme Court justices.

Or maybe it was the surprisingly low prices in the quiet, clean cafeteria. The justices' own dining room is pretty nice, too, and to my learned friend who wonders where he left his wig, it's in the lawyers' room.

© Peter Rozovsky 2010

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52 Comments:

Blogger seana said...

What is going on England? They seem to be borrowing our ideas right and left. First those debates, and now they hanker after a Supreme Court? What next? Driving on the right side of the road?

May 27, 2010  
Blogger Peter Rozovsky said...

Next they'll be saying "aitch" instead of "haitch" for the eighth letter of the alphabet.

I did ask the reason for the change in the alignment of the UK's court system. Pressure from Europe for a more independent judiciary, I was told.

May 27, 2010  
Blogger seana said...

Europe doesnt seem to be in too great a position to pressure England about anything right now, I'm thinking..

May 27, 2010  
Blogger Peter Rozovsky said...

Well, the act that reorganized the courts dates to 2005, if I recall correctly. Europe's position may have been a bit stronger then

But UK judges do have lots to deal with: UK cases, Commonwealth cases. And plaintiffs can claim that a given national law contravenes European law, not to mention some differences between Scottish, Welsh and Northern Irish systems. So those justices Ayo takes care of have lots on their plates.

May 27, 2010  
Blogger Ayo Onatade said...

It was a pleasure to give you a tour of the building!

May 27, 2010  
Blogger Peter Rozovsky said...

If you look after the justices as well as you look after visitors, the UK's legal system is in highly capable hands. Many thanks!

May 27, 2010  
Anonymous solo said...

Peter, didn't this Crimefest thingy end on Sunday?

Reading your posts makes one think it is still ongoing. Perhaps, you're stuck in some peculiar English time warp (too much of that fine English ale, perhaps). God help you, you poor man.

Should we send out a search party?

May 27, 2010  
Blogger Philip Robinson said...

In N. Ireland we say 'aitch' (that is the Presbyterians do - for some reason which escapes me Catholics say 'haitch' - another argument for integrated education).

I don't know about further Americanisation (sorry, Americanization)of the judicial system, but I'm told there will be a phased introduction of driving on the right here. Buses, lorries and other commercial vehicles from 1st June 2011, and cars and motorbikes from 1st December!

May 27, 2010  
Anonymous solo said...

Next they'll be saying "aitch" instead of "haitch" for the eighth letter of the alphabet.

You may be embarrasing your hosts with that one, Peter. The Brits think they say aitch and tend to look down on the Irish for saying haitch.

Another pronunciation problem that comes up occasionaly is height because some people pronounce it as if it ended in 'th.'

May 27, 2010  
Blogger Peter Rozovsky said...

"Peter, didn't this Crimefest thingy end on Sunday?

Reading your posts makes one think it is still ongoing. Perhaps, you're stuck in some peculiar English time warp (too much of that fine English ale, perhaps). God help you, you poor man."


I drank cider rather than ale, English, Irish and, I think, Welsh (this is an international crime fiction blog, after all), but only enough to sharpen my wit.

My posting at conventions often follows this pattern, but it's a big world out thee, with plenty of potential blog posts in it. The days and nights during the event are too full to allow for substantive discussion of the many, many ideas the gatherings generate, so I often wait until afterward for that sort of thing. But Crimefest did indeed come to a gradual end: Formal proceedings ended Sunday, but the convention-affiliated excursion to Hay-on-Wye happened the next day. And how could one not visit London without making a post or two?

Come to think of it, though, I do not know exactly where I am at the moment, but cider, ale or any other beverage or drug is not in the least responsible.

May 27, 2010  
Blogger Peter Rozovsky said...

Philip, I must admit that I have grown used to -ize with a zed (Yes, zed). I first heard of the haitch pronunciation through a passing reference in P.G. Wodehouse, I think, but I had never noticed until someone at Crimefest used it. I don't remember who the it was or where the person was from, much less his or her religion.

I propose a phased, staggered introduction of the new rules. Vehicles weighing more than two tons (or is that tonnes?) whose registrations end in odd numbers shall drive on the right Mondays, Wednesdays and Fridays except for Sundays and bank holidays. At all other times, the rules are reversed.

May 27, 2010  
Anonymous solo said...

Come to think of it, though, I do not know exactly where I am at the moment, but cider, ale or any other beverage or drug is not in the least responsible

Perhaps, I can be of help, Peter. You are in fact a deranged serial killer, who, after a murderous spree in England, is now back in Phidelphia, successfully masquerading as a copywriter for a well-known newspaper.

May 27, 2010  
Blogger Peter Rozovsky said...

Solo, heighth has always set my teeth on edge, probably because I know reason or historical basis for it. Or my attitude could simply be colored by my less than high repsect for the one person I knew who pronounced the word that way. But tell me that the pronunciation is characteristic of a given region or group, and I'll be happy to make its acquaintance.

The one thing I can be fairly sure of is that the haitch-sayer was not Irish. There were fewer Irish attendees at this year's Crimefest -- not a single Declan, as someone observed sadly.

Oddest Irish pronunciation I've heard was in Derry -- key-yawr for car.

May 27, 2010  
Blogger Peter Rozovsky said...

You are in fact a deranged serial killer, who, after a murderous spree in England, is now back in Phidelphia, successfully masquerading as a copywriter for a well-known newspaper.

In fact, I am a gentle soul who is typing this on a train somewhere in New England.

May 27, 2010  
Anonymous solo said...

When it comes to language, Peter, I'm a paid up Nazi. Death to prescriptivists!

May 27, 2010  
Blogger Peter Rozovsky said...

I've always said in my professional life that we copy editors (sub-editors to you, perhaps) ought to be liberal in our understanding of the rules but conservative in our application of them. Since my profession is dying, so is that attitude.

May 27, 2010  
Anonymous solo said...

Liberal? Conservative? Language takes no prisoners, Peter. All you can do is try and keep up. You and your fellow copyeditors are not dead yet. All is not lost! But if you should die, you'll be missed.

I've been listening to The Doors and their song Riders On The Storm and trying to figure out if was based on Ghost Riders in the Sky as some have claimed, or whether it was based in part on the crimes of Billy Cook, as some have suggested.

Given that this is a year in which a woman director has been awarded an Oscar (a unique event), permit me to link to a much earlier crime film (directed by Ida Lupino) based on Billy Cook's crime spree: The Hitch-Hiker (has an odd beginning: john lemmon/citroen)

In fact, I am a gentle soul who is typing this on a train somewhere in New England

Hope that's not one of those Agathe Cristie type trains where people die horrible deaths that would be remain unexplained but for the fact that there happened to be a moustache-twirling Belgian aboard.

May 27, 2010  
Blogger adrian mckinty said...

There's something very dodgy about this court. The Chief Justice was sworn in by his Deputy. The CJ then swore in all the other judges including the Deputy. But that means when the CJ was sworn in, the man who swore in him had no authority to do so. The entire judicial edifice of the UK is built on nothing. There is a vacuum at the heart of British Justice which no one seems to have noticed except for me.

May 27, 2010  
Anonymous solo said...

a copywriter for a well-known newspaper

That should have been copy editor, of course. Ah, there's never a copy editor around when you need one. They're always in one of those Englands, the old one or the new one.

May 28, 2010  
Blogger Peter Rozovsky said...

Adrian, have you ever thought of writing a post-apocalyptic courtroom drama?

I suspected you might weigh in on this matter. I don't know how the UK finessed the transition from the old court system to the new one. Since the motivating force behind the new court's creation was ensuring independence, the question of who swears in the chief justice may have been tricky.

It was cool to see a justice in his shirtsleeves, though. He looked a bit like John Houseman.

May 28, 2010  
Blogger Peter Rozovsky said...

You and your fellow copyeditors are not dead yet. All is not lost! But if you should die, you'll be missed.

Solo: Hollow homage will continue to be paid to copy editors, much the same way that the Roman empire maintained the outward political forms and titles of the republic. American civilization will not die when copy editing dies, but the literary quality of the prose it reads every day will get worse, if it has not hit bottom already. The few remaining copy editors will grow weary of fighting for what was once presumed to be right and will become what their masters want them to be: mere safety nets against the most egregious of mistakes.

I don't remember if "Riders on the Storm" has come up in previous discussions of crime songs here a Detectives Beyond Borders. I like the sound effects on that song and I like "L.A. Woman" even more, but Jim Morrison's cultlike status has always mystified me.

I watched The Hitch Hiker a few years ago and liked it very much. I don't know how many movies Ida Lupino directed, but that one is a noir classic.

No one died aboard the train as far as I know, but the trip was a novel experience, my first on Amtrak's new, faster, more luxurious Acela class -- a different class of train and a different class of traveller from what I was used to on American trains.

May 28, 2010  
Blogger seana said...

I kind of like the sleight of hand involved, actually, now you point it out. It seems a bit like how they've dealt with papal succession and Zen spiritual transmission in a few cases.

May 28, 2010  
Blogger Peter Rozovsky said...

That should have been copy editor, of course.

No biggie, as we masters of American vernacular like to say, especially since I'm not sure the term "copy editor" is current where you live. Are they called "sub-editors" in Ireland?

May 28, 2010  
Blogger Peter Rozovsky said...

Seana, we in the United States may have been spoiled by the country's political genesis in the age of rationalism. Madison and Jefferson and Hamilton didn't have centuries upon centuries of unwritten tradition to cope with the way the British do. Next time I bump into a Supreme Court justice, I'll ask if he feels his powers are grounded in Zen-like spiritual transmission.

May 28, 2010  
Blogger adrian mckinty said...

No one really knows where the authority for the laws come from anyway. OK there's the constitution but where's the law that says we have to obey the constitution? There isnt one.

This Court was set up by Act of Parliament and under the common law tradition (note the word) parliament makes the laws for the UK.

The authority of judges comes from a different common law tradition. When the CJ was sworn in the deputy swearing him just did it. He didnt appeal to ancient rites or God or anything, he just read the text. As far as I'm concerned this has no legitimacy and all the laws in the UK are now moot and questionable.

To quote George Costanza and enhance the apocalyptic theme: Its Thunderdome.

May 28, 2010  
Blogger Peter Rozovsky said...

In the old days subversive sentiments like that would have got you transported to Australia.

I'd never have the patience to practice law, but I'd love to study legal and constitutional history. American law schools routinely teach a conflict-of-laws course. Does English law have any tradition of reconciling conflicting streams of common-law tradition?

As a practical matter, I wondered how the change went over with English Euroskeptics. Now that they're in a separate building, the justices no longer have to share space with the rest of the House of Lords, but I don't know how the new digs compare to the old ones. The building is surprisingly light and airy for anything associated with so venerable a tradition as that of English law. But then, "Law Lords" always sounded to me like an evil cabal on "Doctor Who."

May 28, 2010  
Blogger seana said...

Peter--or she.

Law is kind of like currency isn't it? It's valid only because we have a consensus on that.

Adrian, I think it's probably just as well that it was Peter and not you on Ayo Onatade's tour somehow. Although it might have been pretty interesting to watch it all unfold.

May 28, 2010  
Blogger adrian mckinty said...

There isnt really a conflict of laws in the UK. There's the common law and centuries of interpretation of the common law (remember Scout reading Blackstone in To Kill a Mockingbird) and of course Acts of Parliament. Acts of Parliament always take precedence and the more recent acts take precedence over the earlier ones. The UK Supreme Court was established by Act of Parliament but the whole swearing in thing was very spooky to me. it was like a deputy swearing in the Sheriff and then Sheriff deputising him. The Sheriff's authority to do that came from where exactly? Hans Kelsen the legal theorist says that all laws are ultimately based on a grundnorm - a hypothetical construct or fiction which all lawyers choose to believe. Its a slightly mystical concept. But with the UK Supreme Court nothing was invoked, no grundnorm, no mention of the common law, ancient rights, God, the Queen, nothing, so I choose to believe that beginning in 2009 the entire edifice of English Law has no legal justification or basis and will say so at my trial for robbing the Bank of England.

May 28, 2010  
Blogger seana said...

It's a good back up plan, but why not just make a better plan and get clean away with it in the first place?

I think what you're saying here is fascinating, Adrian, but unfortunately it doesn't make me think that this is a rare exception but that all of law's authority is founded on quicksand.

"Remember Scout reading Blackstone in To Kill a Mockingbird?" Well, no. But it's the fiftieth anniversary of the publication this summer, and we're having a really cool event to celebrate. One of my friends has recently become a judge here, and she is coming to the bookstore as part of our celebration of the event--with no help from me, I hasten to say. But I'll be sure to flaunt Blackstone somehow in the discussion when I can.

May 29, 2010  
Blogger Peter Rozovsky said...

Adrian, when did the notion of a common law emerge? When was it recognized? Does English law have a tradition of courts overturning acts of Parliament, or is the very idea absurd with justices who were part of the House of Lords?

And does the invalidity of English law from 2009 on invalidate laws from before that date> Maybe so, but I'd still be careful about mocking the Queen at Speaker's Corner.

May 29, 2010  
Blogger Peter Rozovsky said...

Seana, I've never read To Kill a Mockingbird or seen the movie, but what has Harper Lee done except for that one book?

Law may be founded on quicksand, which is why I find the notion of a constitution based on common law so fascinating. Reading Blackstone must be like watching a castle being built of the stuff.

And why is it that since I began hobnobbing with Supreme Court justices, everyone claims to know judges?

May 29, 2010  
Blogger adrian mckinty said...

The UK SC cannot overturn Acts of Parliament. HOWEVER all Acts of Parliament are now assumed to be coherent with the Human Rights Act which incorporates the ECHR into UK law so the UK SC can rule that parliament could not possibly have meant to do this or that because it is contrary to the Human Rights Act...

However (again) if a UK act of parliament explicitly overturned the Human Rights Act the SC would have to enforce it, because the grundnorm of the UK legal system is that latter acts of parliament always take precedence over earlier ones.

The fiction about the common law is that it has holistically existed from Saxon times, i.e. way before Magna Carta. This of course is what jurisprudential scholars call: a load of shite.

If I'm correct about this (quite a few years since I left law school) murder for example is still a common law offence in the UK and has never been legislated against. Cool, huh?

May 29, 2010  
Blogger Peter Rozovsky said...

"Peter--or she.

Law is kind of like currency isn't it? It's valid only because we have a consensus on that.
"

Seana, do you mean she may have left the wig? I think not, based on the suit jacket draped over a nearby chair. But that may have been a ruse to throw me off the trail.

Consensus is a tricky notion. Not that I've explored the matter, but Rousseau's notion of a general will has always seemed a bit overconfident, at least in English translation.

Adrian, I think it's probably just as well that it was Peter and not you on Ayo Onatade's tour somehow. Although it might have been pretty interesting to watch it all unfold.

May 29, 2010  
Blogger adrian mckinty said...

You too can read Blackstones Commentaries here

To Kill A Mockingbird is like Star Wars - everyone knows whats in it even if they havent read it. But still its good.

May 29, 2010  
Blogger Peter Rozovsky said...

The UK SC cannot overturn Acts of Parliament. HOWEVER all Acts of Parliament are now assumed to be coherent with the Human Rights Act which incorporates the ECHR into UK law so the UK SC can rule that parliament could not possibly have meant to do this or that because it is contrary to the Human Rights Act...

The ECHR and UK law was one of the subjects of Ayo's commentary and my questions. What does the incorporation of European law into UK law mean for the traditions of common law and the supremacy of acts of parliament? Is the "could not possibly have meant..." formulation a semantic fiction intended to dance around the conflicts that arise from the incorporation of a non-UK body of statutory law into the English tradition?

The fiction about the common law is that it has holistically existed from Saxon times, i.e. way before Magna Carta. This of course is what jurisprudential scholars call: a load of shite.

Shite is right. Almost by definition, common law cannot have existed holistically.

Speaking of Magna Carta, I think just three of its provisions remain part of English law. My English constitutional history is a little rusty, but did the nobles of 1215 claim common law as justification for their demands?

May 29, 2010  
Blogger Peter Rozovsky said...

Adrian, I've just finished Bill James' latest (the crime writer, not the baseball writer. I met him at Crimefest, and he's an amiable chap.) Maybe I'll knock off a bit of Blackstone before bed,

I suppose the English pronounce Blackstone's name as Blackst'n. The unstressed final syllable is the chief difference between English and North Americans,

May 29, 2010  
Blogger seana said...

No, I was only referring to this statement, Peter.

Next time I bump into a Supreme Court justice, I'll ask if he feels his powers are grounded in Zen-like spiritual transmission.

And what do you mean 'claims'?

I haven't read To Kill a Mockingbird since I first read it many, many years ago, but I'd stand by it.

I also stand by the idea of consensus. None of our conventions of governance or currency or law are anything but fictions that we give collective consent to, or are forced by stronger powers to pretend to consent to, and I'm happy to live in a time and a place where there is much I can consent to without hypocrisy.

May 29, 2010  
Blogger adrian mckinty said...

Peter

Yes. Precisely. It is a semantic fiction. But it doesnt not need a super majority to overturn or anything. A simple Act of P can take out the ECHR from English law.

There's a wonderful (but possibly not that interesting for laymen) book about what happens at the breakdown of legal fictions in the grey areas of law called "Laws Empire" by Ronald Dworkin.

May 29, 2010  
Blogger Peter Rozovsky said...

And what do you mean 'claims'?

Mere jealousy on my part, Seana. I am all puffed up because I have been in the same room as judges, but you're friends with judges.

I haven't read To Kill a Mockingbird since I first read it many, many years ago, but I'd stand by it.

I don't know that To Kill a Mockingbird has ever fallen out of favor, but it seems to me I have read in recent years a number of signs that people are noticing it again. Relatively recently someone, maybe he American Film Institute, voted Atticus Finch the greatest or most admirable hero in movie history.

I also stand by the idea of consensus. None of our conventions of governance or currency or law are anything but fictions that we give collective consent to...

That law must be founded on consensus is transparently obvious, so transparent that it's not easy to see for those of us who live in free, open, democratic society. It can be daunting to reflect that something so precious is a manmade artifact.

May 29, 2010  
Blogger Peter Rozovsky said...

Adrian, so what does happen at the breakdown of legal fictions? The Roman empire?

May 29, 2010  
Blogger seana said...

I believe that what happens would be what took place after the Roman Empire.

Well, I've already discovered that it wouldn't help me a bit to know a judge if got up to some scam, as she'd just have to recuse herself.

One of my friends worked as a research attourney for the courts for many years, and though she had her heroes, she wasn't too impressed by them as a group. More than once she characterized it as an old boys'club.

May 29, 2010  
Blogger Peter Rozovsky said...

I have been in the position of having to guard my tongue lest a particular person turn out to be a judge and I should someday appear before him. Luckily it transpired he was not a judge, so only sweetness of temper now restrains me.

The Roman Empire retained legal fictions of the republic. Juius was a populist, as dictators tend to be, and retained the title of tribune of the people, and so on.

May 29, 2010  
Blogger seana said...

Well, my friend is a municipal court judge, so that's hardly on the same level as a Supreme Court justice of England, so you are actually in the more impressive postition.

On the other hand, a close family friend is actually the good friend of the current Secretary of the Treasury. At first glance, this would seem to mean that I can get cash printed whenever I want, but apparently I'm not on the shortlist. My sister and nephew, however, were able to go on a VIP tour of the U.S. Mint in DC a few weeks ago. My nephew enjoyed it, but we used to go to the Denver Mint all the time and take relatives there when I was a kid, so I'm not sure if it would have had the same glamour for me. Still, these small degrees of separation are fun to think about, even if they really don't make much difference at all in day to day life.

May 29, 2010  
Blogger Peter Rozovsky said...

We used to get free samples on school field trips. Why should the Mint be any different?

Your point about small separations is well taken, and I am well pleased to have seen a Supreme Court justice in his shirtsleeves.

May 30, 2010  
Blogger Ayo Onatade said...

Having read all the comments so far and particularly Adrian's I thought that I had better chime in.

The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005.

These are the notes which explain what happened:-
http://www.opsi.gov.uk/acts/acts2005/en/ukpgaen_20050004_en_1.htm
and this is the part of the Act itself :-

http://www.opsi.gov.uk/acts/acts2005/ukpga_20050004_en_1
The Chief Justice is not the same as the President of the Supreme Court. Adrian when you use CJ then I would and possibly some others would think that you are talking about the Lord Chief Justice. I was present at the swearing in of the President of the Supreme Court, his Deputy and the other Justices. Bearing in mind the fact that the Supreme Court Justices were up until 1 October 2009 the Law Lords (based in the House of Lords) there was nothing wrong with the Deputy President swearing in the President and then all the others taking the oath in front of the President. All the Justices had to swear two oaths. The Judicial Oath and the oath pledging allegiance to the Queen. The Lord Chancellor could not do it because his powers to do so have now changed. The Chief Justice could not do it either because the Supreme Court Justices are senior to the Lord Chief Justice.

Also a simple Act of Parliament cannot take ECHR out of English Law. If it could then it would have been done ages ago by the previous Governments. The fact that the UK is part of the European Community means that it is bound by the European Court of Human Rights and any decision that it makes has to take human rights into consideration. Despite the fact that I am constantly hearing people complain about the ECHR but not when it works in their favour.

As much as I love old buildings and I do miss being in the House, our new digs are much better in some ways than our old ones. We were in rather cramped rooms over at the House. The rooms that were used for hearings were rather small and if you had a case where there were more than two defendants normally there would be very little room for people to sit in and hear the case once you counted counsel, the solicitors, the parties and sometimes pupils from chambers. Now in the new building we have a lot more space and it is a lot more comfortable. Furthermore the courtrooms can also be used for judging moots which we could not do in the House. Also when large groups of students turn up for a visit and a talk with a Justice they don't have to sit cramped in what was our small library/meeting room.

June 02, 2010  
Blogger Peter Rozovsky said...

I ought to pay tuition for the lecture notes with which you supplement your on-site practicum. Many thanks.

June 02, 2010  
Blogger adrian mckinty said...

Ayo

I think I'll have to disagree with you there. Are you saying that the ECHR is now part of English law forever? If it cant be removed by Act of Parliament how can it be removed?

No, the British Constitution is a mysterious thing but one thing is not mysterious and that is the principle that more recent acts of parliament take precedence over earlier ones.

If an Act of Parliament explicitly removed the ECHR from English Law what are you saying judges would do? Ignore it, overrule it? I would find this an incredible/impossible development. In the United Kingdom the Queen in Parliament is sovereign not the judges or the courts.

June 02, 2010  
Blogger Ayo Onatade said...

Adrian, you are more than welcome to disagree with me. When it comes to the ECHR or I should say the Human Rights Act it is always has to be borne in mind when cases are being heard and judgments are being given. Otherwise if it wasn't taken into account the case would immediately go to the ECHR on the basis that the Act was ignored. I may be wrong, but I can't see how the Judges can ignore the Human Rights Act. How would an Act of Parliament remove the Human Rights Act? I don't know as I said above if it were that easy surely they would have done it ages ago. We can't claim to be part of the European Union and then try to pick and choose which bits we want and which we don't. But then again if I am not mistaken that is what some would like.

The Queen in Parliament is sovereign and the Judges are there to interpret the law however my understanding is if the law (created by Parliament) is incompatible with the Human Rights Act then they will say so via a judgment if it is challenged and have said so. I don't know what the Judges would do and I can only say that I am pleased that I am not a Judge. As nice as they are to work for I would not have their job for love nor money.

June 02, 2010  
Blogger Peter Rozovsky said...

Ayo, ignorant as I am of English law, I will concentrate for now on your final sentence. I can well imagine what a shock extra-national legislation must be to any legal system, especially one that lacks a written constitution.

June 02, 2010  
Blogger adrian mckinty said...

Ayo

It would work like this: "As of January 1 2011 the Human Rights Act shall be repealed. All remedies and applications of the HRA shall be considered null and void. The ECHR shall no longer be applicable in English Courts and there shall no remedy availble under the ECHR."

Thats all it would take. A judge would not have a difficult decision to make. She could either apply the law (or, I suppose, resign in protest.)

June 02, 2010  
Blogger Ayo Onatade said...

Adrian

I understand the point that you are making, but I don't think that it is as easy as that. If that were the case, why has the Human Rights Act not been repealed earlier?

When the Human Rights Act came into force on 2 October 2000. Its aim was and still is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty. Judges have said in judgments when an Act of Parliament is incompatible and the Government have had to take this on board. Otherwise the case ends up in the ECHR. I am sure if I put my mind to it I could think of at least two cases where this has happened. It would however be even easier for me to give examples if I were at work where I could lay my hands on the information easily.

June 02, 2010  
Blogger adrian mckinty said...

Ayo

I'm not sure I get what you're saying at all. Repeal of the HRA needs no special Act of Parliament or a super majority or anything like that. A simple majority of both houses and thats the end of the HRA and all its manifestations.

Lets say you're right and there were dozens cases where judges found UK legislation to be in contradiction of the HRA. So what? If parliament repeals the HRA from, say, January 1 2011 then all those cases and judgements become completely moot because the HRA has now been repealed. Its that simple. In British law later acts of parliament ALWAYS take precedence over earlier ones. Those cases might be interesting for legal scholars but they would have no relevance for the law of England and Wales after January 1 2011.

I dont understand why you think the HRA has some special protection in British law. Its just an Act of Parliament like all the others and can be repealed in the same way.

The ECHR is a treaty that the UK government signed and yes judges prior to the HRA were required to interpret UK laws as if they were consistent with the UK's treaty obligations, but again this could be explicitly denied by simple Act of Parliament.

The reason that the HRA hasnt been repealed is that the Labour government didnt want to do it. I doubt the Tories and Lib Dems will want to do it either but they easily could.

June 02, 2010  

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