The Rise Of Judicial Supremacism
David Green, 20 June 2015
Justice Collins’ ruling that an electronic tag must be removed from a 39-year old Somali imam is another step in the direction of judicial supremacism at the expense of parliamentary democracy. DD, as the court called him, is believed to have helped the terrorist group al-Shabaab to recruit vulnerable young people. Justice Collins ruled that he suffered from a mental condition that led him to think that the tag contained a bomb and a camera and decided that requiring him to wear the tag constituted ‘inhuman or degrading treatment’ under Article 3 of the European Convention on Human Rights.
This and similar perverse decisions by judges puts into doubt the liberal conception of law that has been accepted in Britain since the age of absolutism was ended by the revolution of 1688. In Tudor and Stuart times monarchs had got into the habit of claiming that laws were commands from them that must be obeyed. The rival view is that laws are the accepted rules for civilised living together that have come to be accepted, either from the passage of time or because Parliament has given formal consent. The authorities can’t just make up laws as they go along.
Justice Collins is an exponent of the authoritarian view of law as the command of a ruler. He commands and others must obey. This notion is the complete opposite of our democratic system of popular consent through a representative parliament.
This year we have been celebrating Magna Carta, one of the most prominent historic reminders to rulers that they too must obey the law. There had been similar declarations in Anglo-Saxon times and earlier still during the Roman republic. It was not only kings who were under the law, but judges too, according to Cicero in On the Laws: ‘the laws are in charge of the magistrate’, which made ‘a magistrate a law that speaks’. The sentiment was repeated by Montesquieu in The Spirit of the Laws (1748): Judges are ‘only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigour’.
Parliament should reverse the ruling by Act of Parliament, but if it fails to do so, the authorities should consider sectioning DD under the Mental Health Act. Under section 2 an approved mental health professional can apply to admit someone to hospital if they are suffering from a mental disorder and ought to be detained for their own safety or to protect others. Two doctors must agree to detention for up to 28 days. This would allow time for the Crown Court to detain DD under section 37 of the Act, which it can do either before or after a crime has been committed. Justice Collins accepted that DD was mentally ill and so the only question is whether his mental condition is a threat to his own safety or that of others. Given that the High Court has accepted that he can’t tell the difference between a bomb and an electronic ankle tag the size of a wrist watch, there may not be much room for doubt.
The idea that Tudor and Stuart monarchs were ever absolute rulers is pure tosh. Taxation was the primary reason. Monarchs were reliant on Parliament for the grant of taxes. Certain duties were voted to a monarch for life such as customs and excise but most of the money needed, especially in times of war, had to be voted by Parliament. Parliament was also very active in the fields of religion and foreign affairs
As for judicial activism, it could be argued that because the Common Law proceeds by precedent it is built into the English judiciary. However, properly drafted Acts of Parliament could prevent much of the seeming nonsense which occurs. Cases involving human rights issues occur simply because the British HRA and the European Convention on Human Rights are poorly drafted, both containing vague statements of principle which allow inordinate opportunity for interpretation. The answer is to withdraw from the Convention and repeal the HRA.
A new Act is not required because the essential protections for the individual already existed before either the Convention or the HRA were formulated.