Alan H wrote:
Nick wrote:I'm referring to legal, not to geographical scope. ie The judges are making law beyond their intended capacity.
I'm still not clear what law they are making and why it is beyond their (its?) intended capacity?
A great deal of law is created by judges. For example, from a different field, Statute says that accounts must be "true and fair", but nowhere are those terms defined; the courts decide. The ECHR was created to introduce a framework into a legally devasted Europe, which had been catastrophically devoid of human rights. I would contend, however, that it was never intended to cover voting rights for prisoners. However, such is the construction of the Courts, that judges have been able to include areas which they think fit, and there is no mechanism to hold them democratically to account. Not that I'm advocating electing judges, but elected governments are not able to exercise direction. To take another example: I wonder if banning Holocaust denial is consistent with ECHR? Though it is nonsense, offensive and bad, in defence of free speech I would hate to see it banned in the UK, but I accept that Germany and Austria may want to do so because of their history. I do not think it is my business to decide for them. There is only so far it is sensible to go. Not everything can be "solved" to everyone's satisfaction. After all, we trade with many countries who would fail the ECHR, but by doing so, we are more likely to encourage human rights within their countries.
I don't think there is any appetite to water down any of the major parts of the HRA or the ECHR, but there are a growing number of MPs who would consider withdrawing from the ECHR as well. This IMO would be a bad thing for a host of reasons, but OTOH, I think it is encumbent on the judges to be aware that their judgements are straining the Convention.
Ditto. What is it that is being strained and how?
The acceptance of the ECHR. The tighter the rules are drawn, the more like they are to break. I am much keener on having good law maintained, than having brilliant law disregarded.
Lord Hoffmann, for example.
What has he judged on that you would disagree with?
It's rather the other way round. He has expressed views with which I tend to agree.
I am not suggesting that any judges make their judgements by spinning a bottle or flipping cards, but some judgements do seem to fly in the face of justice. Perhaps there is a better word than arbitrary. Any suggestions?
I'm more interested in what you think those judgements are (whatever you want to call them).
The detention of terror suspects at Belmarsh comes to mind. There are reasons why a fair trial, with a likelihood of conviction may be impossible. The government has a duty and responsibility to protect it's citizens. Crucially, they could have been released if they had left the country, but no-one was prepared to accept them. The result was control orders. The judgement was based on their "human rights", not on the threat posed.