Throughout the West, judicial branches of government (through the Courts) are fighting a war against the Executive and the Legislative. What’s going on? Peter Sammons considers.
Lawfare
Throughout the Western world we see activist judges hell bent on taking-on the elected legislature. Ironically, for an institution supposedly conservative in its viewpoint, today’s judiciary and the legal profession in the West is increasingly ‘Progressive’ in collective outlook. They subtly back, or even proactively support, ‘Progressive’ viewpoints.
* When did you last elect a Judge? * Is this a bare-faced assault upon constitutional democracy? * Is this phenomenon ‘organized’ transnationally in some way? * Are Judges and the legal profession waging ‘lawfare’ against both the electorate and the legislature, as well as opposing ‘populist’ (that is, popular!) intentions of the electorate? Finally, * are transnational groupings of lawyers and ‘international courts’ somehow better that National courts, and if so, why precisely?
Emperor Courts
This short-ish article raises some interesting questions: https://www.gatestoneinstitute.org/21730/judge-emperor-courts . It is almost as though we are moving away from democracy, towards ‘juristocracy’, that is, rule by lawyers – with elected politicians mere onlookers.
Whilst not uniquely a British phenomenon, we start with a brief introduction to Britain’s constitutional settlement, as this has historically informed the development of democratic institutions globally since the eighteenth century.
Constitutionally
The British constitution is an un-codified set of rules and principles, not found in a single document but rather spread across statutes, common law, conventions, and treaties. It is characterized by parliamentary sovereignty, where Parliament is supreme, and the rule of law, where everyone is subject to the law. Key principles include the separation of powers and the accountability of ministers to Parliament.
Sources:
The British constitution is derived from various sources, including:
Statute Law: Acts of Parliament, like the Bill of Rights (1689) and the Human Rights Act (1998).
Common Law: Judge-made law based on precedent.
Conventions: Unwritten rules and practices, like the role of the monarch and the relationship between the monarch and Parliament.
Treaties: Agreements with other countries, including those incorporated through acts of Parliament.
Authoritative Works: Writings by constitutional experts that offer guidance.
Core Principles:
Parliamentary Sovereignty: Parliament is the supreme legal authority, able to make or unmake any law.
Rule of Law: Everyone, including the government, is subject to and accountable under the law.
Separation of Powers: While not strict, there’s a division of powers between the legislative (Parliament), executive (government), and judicial (courts) branches, with checks and balances to prevent abuse of power.
Key Events and Developments:
Magna Carta (1215): Limited the power of the monarch.
Bill of Rights (1689): Established fundamental rights and liberties.
Act of Settlement (1701): Addressed succession to the throne.
Human Rights Act (1998): Incorporated the European Convention on Human Rights into UK law.
Devolution: Devolved legislatures in Scotland, Wales, and Northern Ireland, grant more autonomy on local issues.
Vive la différence
The UK’s legal system differs fundamentally from the civil law (or ‘Roman Law’) regimes of continental Europe. These regimes embed their ambitions in written constitutions (with Germany’s constitution affirming desire for a federal Europe) and seek in their codes to define precisely the entitlements of citizens and firms. The common law practitioner seeks to deal with practicalities as they arise. By contrast the civil lawyer seeks to create a solution that works in every conceivable circumstance!
Interestingly, the common law, based on case law precedent and a largely literalist interpretation, is in use in all the main financial services centres worldwide – London, New York, Hong Kong and Singapore. This is hardly an accident. Abu Dhabi Global Market adopted the common law 3 years ago and already is financial centre no 26 in the world, with Paris being no 27. It has been said that common law is the Jewel in the UK’s legal crown!
One profound key difference between British common law and continental legal regimes (civil law/“Roman Law” systems) within criminal cases is the presumption of innocence under English law, versus the presumption of guilt under continental systems. What this means in practice is that under continental systems the accused must prove their innocence, whereas in the UK the State must prove the accused guilty.
Civil (“Roman”) law Judges have relatively more power than common law Judges and sometimes common law Judges are envious of the ‘freedom’ that civil law Judges enjoy. This may be a material factor in some of what we see going on right now within the Anglosphere especially, as common law Judges seek (consciously or subliminally?) to mimic the power of civil law Judges. Britain’s judiciary, and laws, were heavily influenced by 40 years of subjection to European (“EU”) laws, which emerge almost entirely from a civil law environment.
(As an aside, the British/common law system appears more in keeping with the Biblical approach to dispute settlement and the amelioration of the power of State apparatus).
Choose your battlefields
In the olden days (!) if a person wanted seriously to contribute to the governance of their nation they would join a political party, campaign, and possibly place themselves forward for election. After that they would typically fight a few elections in seats unlikely to be won, before finally being offered a ‘safe seat’ (if they were any good!) where they would be duly elected and could then serve as a member of legislature. This was especially true here in the UK.
The old system also had the hidden benefit of creating a caste of serious politicians, with character and grit, of more mature years (perhaps commencing political life at middle age) and accordingly with a record of achievement in some profession, commerce, or military/civic service. Electors knew what they were getting! Today, by contrast, if a person wants seriously to interfere with the governance of their nation they become a lawyer and promote test-cases, usually funded by legal aid or by special interest groups. Since common law depends on case-precedent, this can be a notably speedy way of changing law by the back door!
No need, then, to invest time in getting elected, nor burn the midnight oil hammering out compromises across differing political perspectives. No need to invest years to become a representative of the people. Just get a law degree, join a campaigning legal firm, and promote test cases.
Supreme
Troublingly, politicians are themselves (in the UK) getting controversial laws passed, not through manifesto-pledged primary legislation with all its attendant difficulties and political vagaries, but rather by appending controversial law-changes to some adjacent legislation working its way through the legislative process. Riding on the coat tails ……
Hence in the UK the advancement of the most extreme (or ‘Progressive’, depending on your viewpoint) abortion laws on the planet via tagging-on to the Crime and Policing Bill, not a separately argued Bill requiring Green Papers, White Papers and deliberative process through the House of Commons. Even politicians are getting in on this phenomenon of strategic ‘lawfare’, bypassing the usual channels.
In the UK, in 2009, the Supreme Court was invented, replacing the old Law Lords. Whilst the theory behind this move was to give clarity and effectiveness to appeals, in practice it is arguable that the Supreme Court has been used as a vehicle to frustrate government business on key issues through ‘lawfare’.
Few British people will quickly forget Lady Hale and her eye catching tarantula brooch when she delivered the Supreme Court’s position that Boris Johnson’s prorogation of Parliament was ‘unlawful’; this in the context of the constitutional battles associated with Brexit. Whether her choice of brooch was premeditated or merely subliminal, it certainly gave the impression that the Judge intended to ensnare government business in legal red-tape (a legal spider’s web?), and appeared, at that critical juncture, to side with the ‘Remain’ camp of this political argument.
Possibly the most troubling aspect of Britain’s Supreme Court is its very title! If it is ‘supreme’, then it must be supreme over someone, or something. In September 2019 the Supreme Court demonstrated itself as supreme over the Prime Minister and by extension the electorate. We are supreme and, like the Russian Mafia, we are “afraid of no man, and no power”! Does the title “Supreme” engender ‘edgy’ judgments? Final court of appeal, or final opportunity to frustrate the Government and the nation?
Throughout the West
As stated earlier throughout the Western world we are encountering activist judges. It seems that under broader agendas, the international legal profession – and especially its Western components – perceive themselves as shock troops of a cultural revolution largely based on concepts of ‘human rights’.
Human Rights and Human Wrongs
Global human rights law encompasses the international legal framework that supposedly protects the fundamental rights and freedoms of all individuals, regardless of nationality, location, or other status. It is based on the principle that all humans are born free and equal in dignity and rights, and it outlines obligations for states to respect, protect, and fulfill these ‘rights’. Key aspects of global human rights law:
*International treaties and declarations:
The foundation of international human rights law lies in documents like the Universal Declaration of Human Rights (UDHR). These are supplemented by various other treaties addressing specific rights, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.
*Universality and indivisibility:
Human rights are considered universal, meaning they apply to everyone, everywhere, and are indivisible, meaning that civil and political rights are as important as economic, social, and cultural rights.
*State obligations:
International human rights law places obligations on states to respect, protect, and fulfill human rights. This includes enacting laws, policies, and taking actions to ensure that individuals can enjoy their ‘rights’ without discrimination or interference.
*Enforcement mechanisms:
While enforcement can be complex, international human rights law provides various mechanisms for monitoring and addressing violations, including UN treaty bodies, special procedures, and regional human rights courts.
*National implementation:
Many countries incorporate international human rights standards into their domestic laws and constitutions, ensuring that these rights are protected at the national level.
Human Rights in practice
Virtually ANY aspect of public policy can now be argued under ‘human rights’ legislation – and even under international legal sentiment, irrespective of national laws. Right now, all the issues around economic migration are argued and settled under interpretations of so-called ‘human rights’. In Britain the practical effect of this means that providing a person can set foot on British soil, they cannot in any way, shape or form be removed. (Recent British ‘repatriations’ much trumpeted by the UK Government appear, in practice, to have been achieved through paying migrants to go somewhere else. Crudely, this might be called ‘bribery’!)
Migration is now perceived by Progressives as a human right. See Appendix 1 to this article for further perspective on this.
Two egregious examples of frivolous use of the Human Rights Act to debar deportation:
“Catgate” where a student, having overstayed an expired visa, could not be deported partly because he had a cat. The question here is not so much the case but the frivolous nature of at least part of the legal ‘defence’.
“Chicken nugget gate” – an illegal immigrant involved in crime was granted leave to remain in UK partly because his child would not be able to get chicken-nuggets in Albania. This case was ‘judged’ by an appeals Tribunal, which is a specialized appeals court. Again the question is not so much the case but the frivolous nature of at least part of the legal ‘defence’ against deportation. In these and many other cases (note that few are reported – there are thousands ongoing) it appears that the lawyers and Judges involved are mocking the law, and mocking the electorate.
We repeat, it is virtually impossible to remove people from the UK via the judicial “system” because that system is actively ‘Progressive’ in nature and chooses to view everything as a ‘human rights’ test-case. Similar questions are being adjudicated throughout the Western world by a legal profession with its own campaigning agenda, and notably these cases are funded (certainly in the UK) through Legal Aid, which means that the ‘business’ of cases, judgments and appeals is a never ending one, because the taxpayer essentially has unlimited funds.
What I have just written will no doubt be criticized as exaggeration or over simplification, but I believe it is reflective of reality and represents fair comment on a “system” that is out of control – or a law unto itself! Tragically, this business model may in practice put human rights protections back 100 years as the electorate finally rebel (and I choose my words advisedly!).
Coordinated?
We have set out a ‘case’ – or at least a reasoned commentary – on the fact that western judiciary are on a warpath against the legislature, and therefore against the electorate. The next question must be is this coordinated, and if so, by whom?
That question may have to await a subsequent article(s) as it is hugely complex. But through networks such as Common Purpose, the WEF young leaders forum, UN Sustainable Development Goals, and the post-Covid Build Back Better programme, we do see concerted and coordinated efforts to reengineer this world to achieve different socio-political outcomes and to redistribute wealth and power. Since the West is the wealthiest part of the world and also the most powerful, the western world is target #1 in this programme.
Lawfare, and the acquisition of ever more power by courts, is a part of this programme. The electorate may have their “eyes wide shut” on this matter, but the powers that be are very alive to what is going on. It is THE progressive agenda.
Christian comment
Some church people of ‘Liberal’ persuasion would undoubtedly welcome much of what has been written here, and would say that ordinary people need to be ‘protected’ against the overweening power of the State, and that our Lawyers are precisely the people to do this. Of course much of the institutional church is today Woke (and even promoting the Woke agenda). But biblically we can say that these developments are leading us towards the evolution of world government, and the Bible certainly points in this direction [ some helpful material here: https://biblehub.com/q/bible%27s_view_on_one-world_government.htm ].
Britain’s ‘judiciary’ – and the legal profession in general – appears hell bent on becoming Law makers, not Law interpreters. As argued above, Britain is a common law system where the law evolves slowly and – yes – judiciously, with great reliance on legal precedent. Our modern legal profession appear to want to exist in a civil law system (akin to that in the EU) where judges are far more active in a political sense – making case law without clear reference to precedent, nor to ‘natural law’. In Britain we urgently need a recalibration of the Judiciary/law versus the Legislative+Executive – the courts versus Parliament. Britain fought a civil war to make Parliament supreme, but today we live under (Labour’s) Supreme Court and (Labour’s) Human Rights Act.
The Western world is unraveling. Arguably the Judeo-Christian worldview was fundamental in the development of the West, and in the development of open and pluralistic democracy. Ironically at the very moment that open pluralistic democracy was achieved to its fullest extent (arguably the post World War 2 settlement) the West chose to abandon its God – and actively to oppose Him. The implications arising from this abandonment and opposition are frankly incalculable.
Rather too many politicians, especially of the progressive Left, are more than happy with the development of “juristocracy”, as these development serve to turbo-charge their race towards a brave new world – a brave new Progressive world. Christians are, in any case, ambassadors representing a ‘foreign’ land [2 Corinthians 5:20]. We should not be too surprised – nor exercised – about how the West unravels. (At present, the assumption of effective political and social power by Islam seems the most likely outcome). Rather, we Christians must redouble on our core commission, to preach Christ in season, and out of season (2 Timothy 4:2).
Let’s get on with that job ……………
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Some basic videos – on British Constitution and laws
UK constitution Constitutional Law explained SQE
https://www.youtube.com/watch?v=8zRQ78cURcM ( 2 minutes)
Magna Carta UK Constitutional law explained SQE
https://www.youtube.com/watch?v=Vqp6JdtWux8 (2 minutes)
International Law Functions vs domestic Law explained
https://www.youtube.com/watch?v=SST-1fypuyI (2 minutes)
Vienna Convention Law of Treaties Treaty termination Suspension VCLT International explained
https://www.youtube.com/watch?v=Y2-Hav0MkLY (2 minutes)
General Principles of Sources of International Law explained
https://www.youtube.com/watch?v=RetZWHb27C0 (3 minutes)
APPENDIX 1
Few electors seem to be aware of the UN’s 2018 “Global Compact for Safe, Orderly and Regular Migration”, which effectively makes migration a human right. Not asylum a human right, but migration! Britain acceded to the UN Compact under premiership of Theresa May. I do not recall any public discussion – or Media interest – at the time, nor since. Although officially non-binding, the UN Compact “puts migration firmly on the global agenda …. a point of reference for years to come, and induce real change on the ground…” according to Jürg Lauber, Swiss representative to the UN – who led work on the agreement. Background here: https://www.gatestoneinstitute.org/13263/un-migration-human-right . There is no sensible debate about migration without taking the 2018 UN Compact into account.
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