Month: March 2021

Whom are you serving?

You are being used, and they will spit you out when they are done. You may gather at a school to make your feelings felt, and you may end a good man’s career this time, and believe that this means you now have power to force society to bend more to your preferred norms, but you are being used. You have no more power than an atheist mob permits to you.

It was a different world in 1989, before the Wall fell.  As the year opened, protests burst out upon the streets of many countries against a Whitbread Prize-winning novel few then had heard of. In Bradford, Muslim elders hung from a stick a book they had never read and burned it in protest – they made at that time no threat against people or property, but all of respectable opinion in Britain was against them. When Persia’s spiritual chief issued an actual death sentence against the author, not just British opinion but that of the world was repelled. It was a turning point, but not in favour of the freedom proclaimed from all ends of social opinion: it was a turning point against free expression.

The shock at that fire in Bradford was not the act itself, burning a book – it is a very good book, but it is only paper. It was the sudden discovery of a new political identity within the population. Before Bradford there were Asians, undistinguished amongst their tribes and sects for most of us. Now there were Muslims.

It was a rollercoaster year, 1989: the Satanic Verses, the invention of the World Wide Web, Tiananmen Square, and the collapse of European Communism, ushering in a new order to the world. The Wall fell, old, oppressed nations began to rediscover themselves and the thrive anew in freedom: except in the first to turn, Algeria, which fell to Islamicists. In the West, socialism was openly disgraced but a backlash began in quiet corners, and the events of Bradford were too good an opportunity to miss.

There was no conspiracy – there did not have to be when men of ill-will were thinking the same thoughts and swapping fake outrage in the Grauniad.

The Communist regimes in the East were no longer there. Their failures and brutality had been exposed to the world. Those who had long hated their own society and culture, who had supported the Communists to destroy that culture, were still there though. They saw in the ash from those book pages a new way to attack the Judeo-Christian normality of society.

After Bradford it became a necessity not to offend Muslims, and that sounds benevolent enough – I really have no wish to annoy Muslims unnecessarily. It was a power game though, and the power game is not about benevolence. There were two groups now, in natural opposition normally but working the same way. There were some Muslims who saw an opportunity to push an agenda of their own; to persuade schools to treat Islam as unchallengeable, for example: there are always people like that in any group. However their games are all far less important than the ‘liberal’ offensive, led by others.

Driving Christian references from public life moved on apace after 1989. The tabloids’ favourite is ‘banning Christmas’, but it goes far beyond that. In 1988, Margaret Thatcher ensured that school assemblies be ‘broadly Christian in character’, but thirty-three years later that seems inconceivable. State and society have been secularised from top to bottom, and discrimination laws so interpreted as to keep it that way.

So it was in 2005 or 2006 that I attended a talk on Islam in British life, and was shocked by something I heard from the mouth of a learned judge. The subject of the Jyllands-Posten cartoons had come up and common commentary in that season seemed to be that they were grossly offensive and should be shunned, even banned. An audience member then asked why the cartoons should be banned when we champion the right to free speech by Salman Rushdie. The judge, a renowned liberal and certainly not a Muslim, said that he thought we had got it the wrong way round, and the cartoons were unimportant but the Satanic Verses should have been banned.

How the world had turned in that short time: as Eastern Europe cast off servitude and embraced freedom, Western Europe has cast away freedom.

The result is not what Muslims would have wanted. Would the average Muslim be happy with what was once a religious society becoming enforcedly atheist? Barely any Muslim is bothered by the public celebration of Christmas, but may be greatly offended by the suppression of religious expression.

Those at that school gate in Batley may think they are defending their religion, but it is a game played by the Guardianista liberal, which is the bitterest enemy of all religion.

See also

Books

Putin: we’re coming for you

You will not escape our scrutiny. we have our eyes on Russia no less than does the Skibbereen Eagle itself. Your cold brutality opposes every British value, which are the only values any decent man or woman should have. the dignity of every individual, the rule of law making freedom an everyday instinct and reality. We will not leave you a free pass nor let your practices become the way we oppose the destruction of society.

Western society is being destroyed: we see how it is going and from whom, just as you do, and we oppose it just as you do, but you are not us and we will not swap a woke tyranny for a Putin one.

Its a powerful world stage for you: I do not know if you influenced last year’s election in America, but your patsy got into the White House anyway; there has not been a weaker more submissive, pointless president since Medvedev. You may want to use this situation to impose yourself more strongly upon the world, but you have to get through us first.

Look us in the eye, Vladimir Vladimirovich. What do you have? You may have a large (or largely drunken) army, you may have agents and useful idiots everywhere, absolute control over a country 5,000 miles long, some of it even inhabited, guns, bombs and novichok – but we have keyboards, and we’re not afraid to use them.

We are British, something you can never be, so be jealous, and afraid.

Here on this site we are united: we have you, Putin, in our sights and will pursue you relentlessly. (Unless you’ve got a job going that pays well – preferably working from home – will learn basic Russian if required – all reasonable offers considered.)

See also

Books

A start to fixing judicial review

A very encouraging government response in the review of judicial review suggests that the system will be made to work better. It is still the start of the process.

The Law Society fell over themselves to find something to object to, which they would have done irrespective of the outcome: in fact the government’s paper is everything the Law Society could have wanted.

Some of the problems found in the current judicial review process are set out in the paper, but only some. The main reforms proposed are encouraging, as a start, and on their own they would make the system work better for everyone, not to stop judicial review of administrative decisions but if anything to make it a remedy more available for genuine cases, while providing a mechanism for remedying decision-makers’ faults. It is not a wholesale reform, but it sets the tone.

The headline points are short. The first of them seems very niche: reversing the ruling in Cart. That (and I had not heard of it either) was a decision allowing parties to challenge the Upper Tribunal if it does give them leave to appeal. It was pointed out that the Upper Tribunal is a senior judicial body that was never meant to be amenable to judicial review in this way and those appeals are the biggest single type of judicial review; 779 a year on average, with a miniscule success rate. It discredits the system, ties up judges in pointless work and wastes resources to no benefit.

The second-biggest set of appeals is one highlighted here before, namely immigration challenges. While this is not covered in the paper, eliminating those challenges by giving the Home Secretary complete discretion to do her job would knock out about as many cases again.

The second reform is interesting in terms of legal philosophy; the classical conception of judicial intervention would not countenance it, but modern conditions are far from the original conception. The classical formulation is that a decision made beyond authority is a complete nullity from the beginning, and therefore the court’s only role is to declare it so. In modern practice, decisions are very rarely quashed for being wholly outside the decision-maker’s powers, but for procedural inadequacy, such as failure to consult in the way laid down in a regulation, if that is a condition of action. In such a case, the court might in future be empowered to suspend the decision so as to give the errant decision-maker a chance to put right the procedural flaws. The challenge then is to allow that latitude to genuine correctable oversights and not extend it to actual exceeding of authority.

(The example of the latter given in the paper is if Parliament were to create a tribunal empowered to hear only tax cases but the tribunal started handing out murder convictions. That sounds wild, but it is exactly the sort of thing that used to happen back in the day, right up to the Revolution of 1688, and caused the Court of King’s Bench to issue many a writ of certiorari against lesser courts.)

A third string to the government’s paper is another one which has been highlighted here: the High Court’s blatant disregard of ouster clauses. Here the Law Society become vocal: “We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us” – but that is a dishonest reading of the paper. Ouster clauses are rare, and there is no suggestion that they would become more common. Where they are needed to give finality to decisions, Parliament orders it, and to disregard the plain words of an Act of Parliament is the very antithesis of the rule of law: it is Parliament which makes the law.

If ousters become commonplace, then there would be an objection, but that is not suggested. What the paper actually discusses, if not in so many words, is “How to we stop judges from using sophistry to ignore the plain words of an Act of Parliament whenever they want?”

The narrative to the report, aside from the actual recommendations, is of as much interest in setting the tone. The golden thread is the rule of law. That is also the ideal championed by those cynical of the government’s motives.

It is right that Labour and the LibDems and the Law Society should be sceptical. It is right that they should voice suspicion of the government’s move. A government is not to be trusted with the delimitation of its own powers. Parliament is the trustee of that restraint. Care must be taken of a government looking at the limits of its powers, but in this case the writers of the report have trodden carefully.

The rule of law is here accepted, and whatever right and proper suspicions are expressed by the Opposition or the Law Society, when it comes down to it, the Conservative benches in the Commons have more respect for the restraint of government power than may be found opposite, simply by ideology.

One word mysteriously missing from the whole paper is “Wednesbury”. The Wednesbury principle is the foundation stone of modern jurisprudence on judicial review. It is placed in fact in the paper, not by the name ‘Wednesbury’ but as a reminder that basis of the modern rules is not to empower judges but to reflect the intentions of Parliament:

“while the standard grounds of Judicial Review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases.”

The actual rules in question have been discussed before. The originals have shrunk in the imagination to one: reasonableness. That word is open to misinterpretation, often deliberately. The meaning of “reasonableness” will be the next article on this subject.

To go back to the paper, it refers to ‘the tendency in the contemporary debate to see terms such as “the Rule of Law” as coterminous with the application of a range of moral and normative values’ and observes, correctly, that:

“there is a significant difference between defining the Rule of Law as the idea that the powers granted by Parliament or through the prerogative should be enforced by the courts (or another body) according to Parliament’s intent, and the idea that the courts should apply as a matter of course another source of authority such as their own concept of fundamental rights”

That is the fundamental trespass that activist judges can make. Judicial review is there to restrain officials from exceeding their lawful jurisdiction. It is not based on idea that judges are all-wise and ministers and officials are foolish so a judge would make a decision better.

There must be limits to ministers’ and officials’ powers, or freedom can be extinguished, and the courts will enforce those limits. However, the law is not just about limits: it is about actual powers granted, and they are granted for the benefit of the public. For a judge to invalidate a power actually given, because he has other ideas, that is to disregard a command of the law, and thus is a contempt for the rule of law.

See also

Books

The abilities that are required of him that will deliberate of business of state

IN deliberatives there are to be considered the subject wherein, and the ends whereto, the orator exhorteth, or from which he dehorteth.

The subject is always something in our own power, the knowledge whereof belongs not to rhetoric, but for the most part to the politics; and may be referred in a manner to these five heads.

1. Of levying of money

To which point he that will speak as he ought to do, ought to know beforehand the revenue of the state, how much it is, and wherein it consisteth, and also how great are the necessary charges and expenses of the same. This knowledge is gotten partly by a man’s own experience, partly by relations and accounts in writing.

2. Of peace and war

Concerning which the counsellor or deliberator ought to know the strength of the commonwealth, how much it both now is, and hereafter may be, and wherein that power consisteth. Which knowledge is gotten, partly by experience and relations at home, and partly by the sight of wars and of their events abroad.

3. Of the safeguard of the country.

Wherein he only is able to give counsel, that knows the forms, and number, and places of the garrisons.

4. Of provision

Wherein to speak well, it is necessary for a man to know what is sufficient to maintain the state, which commodities they have at home growing, what they must fetch in through need, and what they may carry out through abundance.

5. Of making laws.

To which is necessary so  much political or civil philosophy, as to know what are the several kinds of governments, and by what means, either from without or from within, each of those kinds is preserved or destroyed. And this knowledge is gotten, partly by observing the several governments in times past by history, and partly by observing the government of the times present in several nations, by travel.

So that to him that will speak in a council of state, there is necessary this; history, sight of wars, travel, knowledge of the revenue, expenses, forces, havens, garrisons, wares, and provisions in the state he lives in, and what is needful for that state either to export or import.

See also

Books

Propitiating the divine NHS

A long shop window in the high street of a prosperous town; more than just a hairdresser but a ‘salon’ with shelves shining with new unguents for the discerning lady; and all closed and dark. The window shows across its whole width a rainbow and a line of praise to the NHS as to a divinity.

The rent must still be paid, and the rates, but there is no income from which to pay them as the salon is closed in the name of health, which brooks no logic, no moderation, and demands that Hygieia receive unquestioning devotion. Though driven to possible bankruptcy by this cult, the desperate shop-owner expends lavishly on a huge plastic banner proclaiming her own devotion.

It is reminiscent of finding a ruined Roman house with a clay tablet cast in a final precatio, an address in devotional, loving terms to the gods the householder believed were destroying him.

Someone is making a fortune with these slick, professional banners. (Good luck to them – at least someone is still making money.)

Nigel Lawson wisely observed that the NHS is ‘the closest thing the English people have to a religion’, and the truth of that has been amply demonstrated over this long epidemic. In past years the NHS had been seen to replace the church (an unreformed church desperately needing a Cranmer). The messages of the rainbows suggests it has gone further, in an apotheosis by which the National Health Service has been deified, such that to it are addressed the praises and supplications of its supplicants.

The NHS and all its works are now praised even more for their miraculous achievement of the vaccines; but these were not developed by the NHS – the NHS would be incapable of doing such a thing, but will passively accrue the credit for this feat.

As the lockdown is lifted, some shops will stagger to their feet. Others will simply shut and walk away, leaving a hole in the high street and employees at the dole office (being paid from your pocket and mine). In the wreckage there may be some sensible shaking down of opinions, but that is unlikely. If the failures of this last year are examined by cool heads, any attempt at a Reformation will be met by the fury of the devotees of the deified NHS.

See also

Books