Should MLAs merely serve the pure technology of the law, or seek to change it?

Following on from yesterday’s, here’s some additional thoughts, in which I argue that we all may be getting a little too comfortable with letting judges frame law instead of our elected “Lawmakers” at Stormont…

Most recently there has been the recent Asher’s cake row, of which Fintan O’Toole had this to say a few weeks back

There’s a big difference between outlawing discrimination on the one hand and forcing people to express support for things they don’t believe in on the other. No one should be forced against their conscience to participate in, or support, a same-sex marriage.

But – and here’s where the argument reaches its limits – this has nothing in itself to do with religion. The McArthurs should have the right not to bake that cake, not because they’re Christians, but because they’re equal citizens in a rights-bound democracy.

Christians? Equal citizens? Who’dda thunk it?

And yet, in this case all the judge had to go on was case law and precedent. Critically, no democratically elected politicians were harmed in any way in these actions. No one will be putting it in their manifestos, unless it is to make promises they know they won’t keep.

With regard to dealing with the past, as noted publicly by the Attorney General in the absence of any political agreement the courts are being used as an activist arm of a political campaign for justice for some of those victims…

But law is often used to trump efforts at reform in health, or to block it in education.

The Tory MEP Dan Hannan takes a fairly extreme view on this matter, which nonetheless may in the process of becoming mainstream if the Tory Government’s plans to do away with the Human Rights Act (which has a tendency to promise conflicting rights to competing parties).

To what problem was the 1998 Human Rights Act supposed to be a solution? Were British citizens being routinely expropriated, or interned in camps, or forcibly transferred to remote exile? In truth, there was no crisis in civil freedoms; but there was a crisis in democratic legitimacy, which Tony Blair’s legislation exacerbated.

As powers shifted from MPs to judges, the gap between rulers and ruled widened. Many of the grumbles that people have about the ECHR — the sense, above all, that it rewards scoundrels and punishes honest citizens — derive from the tendency of British and European judges to stretch the Convention far beyond what most of us regard as the plain meaning of its words.

It’s this stretching of practical meaning around legal terms rather than human terms which may be bringing human rights practice into disrepute. As though we were here to serve the pure technology of the law rather than have it serve us as equal (and sentient) citizens.

There are concerns that fiddling with the centrality of the European Convention on Human Rights could undermine the basis of the Belfast Agreement. Just one of several reasons the last Tory Attorney General was unpersuaded of the case for changing such deeply embedded law.

I suspect that whatever this Bill of Right turns out to be it likely have to continue to support the case law already laid down under the Human Rights Act or all hell could ensue. Which further begs the question of any new Bill of Rights: if it leaves most things undisturbed, then why change it?

Which brings me back to Northern Ireland where the more pressing question is, why do we pay our so-called lawmakers if they cannot find anything upon which there is sufficient agreement to change the law on.

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  • notimetoshine

    There are always complaints about judicial decisions especially when they are unpopular and based on unclear or ill thought out legislation.

    One of the core competencies of our judicial system is interpretive. Better legislation makes better or less broad the role of the judiciary in relation to that interpretive role. The HRA is a perfect example of broad strokes and little detail allowing for a far and wide (mis)use by the legal system.

    “It’s this stretching of practical meaning around legal terms rather than human terms which may be bringing human rights practice into disrepute. As though we were here to serve the pure technology of the law rather than have it serve us as equal (and sentient) citizens.”

    Your point above is a perfect example of why the fault lies with the legislators not the legal system which can only work with what it has to work with. The practical meaning of the HRA isn’t clear, its boundaries and limits I think undefined, leaving the technology of the law to interpret as best it can.

    Probably one of the causes of this is the inherent difficulties around the common law system on which ‘anglo’ legal systems are based. Common law demands precedent (the creation of or use of) and the difficult job of navigating and interpreting rules and laws which are unsatisfactorily qualified or explained. There seems to be a natural tendency in our legal system for sweeping interpretation when clarity and concision are called for.

  • Zig70

    Is the problem not that we elect politicians and spoofers. Maybe if we changed the title of MLAs to Lawmakers then people would think twice about sticking a tick beside some of them. I’ve been in discussion where people were shocked that MLAs main function is law creation and in other discussion where practicing lawyers express dismay at how rubbish any output is.

  • Ben Archibald

    I’m extremely relaxed about the idea of someone with an understanding and appreciation of the culture and practice of laws in these islands interpreting those principles, particularly when the assembly is incapable (through pettyfogging deadlock and lack of consensus) of establishing new principles. Where they fail to govern, let the prevailing principles rule. If the assembly wishes to overturn established precept, it is entirely open to them.