Who’s the daddy?

Who’s the daddy?

Humpty Dumpty sat on the wall, Humpty Dumpty had a great fall...

According to Lord Neuberger: “the law is common sense with knobs on”. However as the 10 February 2011 Voting by Prisoners debate in the Commons shows, knobs don’t have common sense!

I did panic for a few minutes when Google Alerts emailed me the Daily Mail story “Prime Minister can deny prisoners the vote says senior judge”. I thought it was a typo and should have read “says senile judge”. Having read the story I calmed down somewhat because I could not believe what I had read. So, I did a Google search “Lord Neuberger lecture 7 April 2011” and found what I was looking for on the Judiciary of England and Wales website: “Who’s the master now?”.

My Asperger’s Syndrome does mean that I tend to adopt the literal meaning. It was this which first started me on my campaign for prisoners’ votes. But, then I realised what I had read actually meant something else. Still, I decided to press on regardless.

The origin of the title lies, of course, in dialogue by Ray Winstone in the film Scum.

I think ‘the verdict of the people’ is best expressed in a system where the sovereignty of the people and not supremacy of Parliament rules. Churchill has said that how we treat prisoners is the test of how civilised society is. From the outset I knew that there needed to be constitutional change. Montesquieu advocated the need for a separation of powers between the Executive, Parliament and Judiciary; and in the UK we clearly suffer from a fusion of powers. In the UK, I have presented what Lord MacKay of Clashfern recently called the “Hirst problem”. And, Strasbourg, in Frodl v Austria called it, the “Hirst test”.

Lord Neuberger addresses the issue thus:

“First, there are suggestions in newspapers, articles, and even in one or two judgments, that the judiciary may, in some circumstances, be able to claim supremacy over Parliament. Secondly, some disquiet has been expressed in the press, and by others such as my erstwhile colleague, Lord Hoffmann, about the apparent creeping supremacy of the Strasbourg Court.

“Thirdly, and most fundamentally, we live in a society governed by the rule of law, and there can be an inherent tension between the notion of the supremacy of a democratically elected legislature and the rule of law. The two concepts are, I suggest, sometimes confused by the Strasbourg court, which often justifies decisions by reference to what is required in a modern democratic society when it really means to rely on what is required in a modern society governed by the rule of law”.

I have read the same suggestions that there may come a time when the supremacy of Parliament may be challenged, and I am not alarmed by the idea. Also I have read and heard the fears expressed by Lord Hoffman and the like, in relation to the ECtHR, and again I am not fearful.

I would suggest, perhaps, that Lord Neuberger is getting confused. He was schooled in the traditional black letter of the law, whereas I rejected this for its narrow outlook and instead studied the law in context or ‘living law’ approach and adopted this and adapted some to my own school of thought. The Council of Europe has 3 objectives Human Rights, Democracy and Rule of Law. At the Interlaken Conference it was mooted that Human Rights should assume the status of ‘Higher Law’ throughout the Member States of the Council of Europe. I favour this notion. However, I can see that presently, in the UK, that this would cause conflict with the notion of supremacy of Parliament. The problem is that Parliament has not been democratically elected in the first place because it assumed power by axing the head off King Charles the First, and more recently because a large section of the public were denied their human right to vote. This calls into question the legitimacy of the present Parliament to govern. The view expressed from Strasbourg is that the rule of law means, inter alia, abiding by the Convention and fully complying with the decisions of the ECtHR.

Lord Neuberger states: “I also reserve the right to change my mind if addressed in court on any of the issues I am talking about this evening to follow the example of Baron Bramwell, who when referred to an earlier decision of his, said: “The matter does not appear to me now as it appears to have appeared to me then””. I hope this also refers to him changing his mind about his decision in the Court of Appeal in Chester? The case was obviously wrongly decided. A problem with the Master of the Rolls expressing an opinion is that those judges under him in the High Court will be influenced by what he has said. Once an injustice has been created the injustice is continued.

Master of the Toilet Rolls

The Daily Express, unusually, gives a slightly milder reporting of Lord Neuberger's speech here.

And, thankfully, Adam Wagner of UK Human Rights Blog gives a translation of what Lord Neuberger was trying to say here.

Photos adapted by Jan Chyken.