miss_s_b: (Politics: Democracy)
[personal profile] miss_s_b
Do you know what really annoys me about this privacy argument? The number of people complaining about "unelected judges making up law".

Firstly, to talk in generalities, the three arms of any legitimate government are the legislature, the executive and THE JUDICIARY. Judges are MEANT to interpret the laws they are given by the legislature, and they are MEANT to fill in the gaps when people have a dispute and the legislature hasn't legislated for that particular dispute. Just because we have a fucked up slightly unbalanced system in this country where the executive effectively controls the legislature and has carte blanche to do what it likes does not mean the system would be made better by having the executive control the judiciary as well.

Secondly, to speak to this specific matter, when I did my initial degree in the mid nineties, we discussed how the forthcoming Freedom of Information Act meant that we would need a corresponding privacy act, or there would be all sorts of problems, especially given the vagueness of the provisions of the forthcoming Human Rights Act. If, FIFTEEN SODDING YEARS LATER we still haven't got a privacy act, that is NOT the fault of the judges. Judges have to adjudicate on the case before them whether there is statute or not. If there IS statute then they are bound to use it, but if there ISN'T... If parliament doesn't want "unelected judges making up law" they should pull their bloody fingers out and enact something.

Of course they won't, because it's too much of a hot potato, and it's far easier to do nothing, and when a flare-up happens sit back on your comfy green/red benches and whine about "unelected judges making up law" because most of the mainstream media, and therefore the public, are so ill-informed in legal and constitutional matters that they'll just swallow it and parrot it back to each other.

In summary: anyone who whines about "unelected judges making up law" can safely be dismissed as talking total bollocks, probably to score political points.

And that's not just the wine talking (please excuse any drunken typos).

Date: Monday, May 23rd, 2011 11:38 pm (UTC)
matgb: Artwork of 19th century upper class anarchist, text: MatGB (Default)
From: [personal profile] matgb
that's not just the wine talking

True. Because I drank most of the wine. Was good wine though.

People need to read the HRA, especially clauses on free speech, association and privacy. Nowt in there I object to, but much of it vague.

Date: Tuesday, May 24th, 2011 12:31 am (UTC)
From: [identity profile] neohippie.livejournal.com
people complaining about "unelected judges making up law"

Oh noes, you have those too? I'm sorry.

Though the people 'round these parts that complain about "activist judges" don't seem to care too much when the judges "make up law" THEY like, though.

Date: Tuesday, May 24th, 2011 06:32 am (UTC)
londonkds: (bitch please (nostalgia))
From: [personal profile] londonkds
I haven't found it yet, but there must be an overlap between "unelected judges making up law", and the people who weirdly idealise "common law" as the thing that protects us from tyranny.

Date: Tuesday, May 24th, 2011 01:49 pm (UTC)
po8crg: A cartoon of me, wearing a panama hat (Default)
From: [personal profile] po8crg
Ain't the judges fault that the politicians passed the buck to them on a big scale and then complained that the judges didn't pick the options they would have liked.

The margin of appreciation is pretty generous, but just directly incorporating the ECHR as the HRA means that Parliament isn't picking a point within that range.

Mind you, I also don't like the people objecting to John Hemming. The point of parliamentary privilege is that Parliament is the highest court in the land and is not subject to the jurisdiction of any lower court. If the royal judges - bear in mind that the High Court was sitting as the Court of Queen's Bench in laying down the injunction(*) don't like Parliament overruling them, then they can sod right off to the seventeenth century and take their divine right with them.

(*) and isn't that curious - a common law court using an equitable remedy. I have to confess I expected to find that it had been sitting as Chancery.

Date: Tuesday, May 24th, 2011 05:10 pm (UTC)
liadnan: (Default)
From: [personal profile] liadnan
Worth also considering the many debates in Parliament on the subject in 1997 to 1998.
In particular -
HL Debates, 3rd Nov 1997 col. 1242 per Lord Lester of Herne Hill
http://www.publications.parliament.uk/pa/ld199798/ldhansrd/vo971103/text/71103-04.htm
However, like the European Commission of Human Rights, the European Court has also made it quite clear that claims to personal privacy must not be allowed to defeat the vital public interest in free speech, except in cases of real necessity and where what is at stake really is the individual's private life. It has declared that prior restraints on publication call for particularly careful, strict scrutiny.

In the Fayeds' case--where, alas, I was defeated--the court made it clear that free expression is especially important in relation to the activities in the public sphere of public figures, as distinct from the private lives of private individuals. Politicians, public officials and businessmen involved in the affairs of large public companies lay themselves--stated the court--open to close scrutiny of their acts by the media.

The media should recognise that the UK has a positive obligation under the convention to secure the right to privacy in domestic law, and that our courts are likely--as has been said already--if not certain to develop a common law of privacy even without statutory incorporation. Some genuinely independent authority, I suggest, must surely perform the difficult and sensitive task of maintaining the balance between free speech and personal privacy.

I agree with the noble Lord, Lord Wakeham, that that body should be the Press Complaints Commission, whose enforcement and remedial powers need to be enhanced by the media in the interests of a free press acting in accordance with a new and strengthened code of practice. If that happens, then I believe that the development of a right of privacy, already inherent in the common law, will not lead normally to judicial intervention against the media, except in cases of real necessity if the PCC fails to secure a fair balance and to provide effective redress.


There are some good bits in Commons Hansard as well.

Parliamentary privilege

Date: Monday, May 30th, 2011 08:55 am (UTC)
From: (Anonymous)
A perfectly good point against those who suggest that judges shouldn't have a say because they are un-elected.

Fortunately, a) that is not what most people are doing and b) the law says that they can't gag parliament.

And additionally, yes, legally they can interpret the law but i) it is pathetic that judges should attempt to use an injunction to disguise their own judgments and ii) they are, simply, mis-interpreting the Human Rights Act.

I say 'they', but we all know that I mean Justice Eadie.

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