The Abilities required in a Judge

The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place.

The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence.

In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unlesse it be made appear, they did it against their consciences, or had been corrupted by reward.

The things that make a good Judge, or good Interpreter of the Lawes, are,

  • first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon.
  • Secondly, Contempt Of Unnecessary Riches, and Preferments.
  • Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion.
  • Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.

Leviathan, Chapter XXVI: Of Civill Lawes

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The work begins: constitutional reform

The Constitution, Democracy and Rights Commission will be established probably this year.  Nothing in the Conservative Manifesto suggested radical changes in the constitution – it is, after all, a conservative manifesto – but Parliament would be failing in its duty were it not to knock a few blocks back into line where they have become dislodged.

Even a majority of 80 is not enough to overturn the fundamental elements even if that were tempting. The changes proposed are barely even changes. This reality has not stopped incontinent rages on social media.

The Commission from the first day must handle its work sensitively. The objective has been set out up front:  rebalancing our understood constitutional norms, strengthening the rule of law and strengthening the operation of democracy.  Momentum-type commentators like Owen Jones and his endless identikit clones are prophesying instead the destruction of democratic norms and the rule of law, rather like a socialist state I suppose:  this accusation must be met by such demonstrable practical contradiction that the likes of Jones are humiliated.

The motto for any Conservative with a position of strong political power should be one from Shakespeare:  “Oh it is marvellous to have a giant’s strength; but it is tyrannous to use it as a giant”.

The essential duty is to do the right thing.  Politically though it is not enough to do right – the whole process must be handled in an open manner with clear, unarguable objectives and all decisions must be traced to those objectives.  Left-wing commentators will claim credit for preventing a destruction of democratic norms (which is a lovely irony), so politically the derivation of the result must appear as a logical outcome of principles.

There is a trust issue.  It is legitimate for commentators to be wary of constitutional changes when there is a government with enough strength in the Commons to drive through almost anything. Trust must be won by demonstrating trustworthiness.

All this will not be enough to quieten shouty people on Twitter as reason does not rule in that sphere.  Lack of credibility does not stop people getting on Sky News to talk of their fantasies of tyranny. (In America, where not a jot nor tittle of the Constitution can be changed without 34 bickering states and Congress agreeing every word, there are Twitter warriors sincerely telling their followers that the President can cancel elections and rule for life.)  The answer to lunacy is lucidity.

Nothing grand will come of this – Parliament can do anything to the constitution, but  Dire warnings are welcome, but thy must be realistic to be credible, and so we start with what we know.

There will be popular and unpopular decisions to be made, and timing these will be crucial.  It is tempting to make unpopular choices at the beginning and finish the rest of the term with popular ones to boost poll ratings, but government does not work like that, and voters are not so daft either.  Tony Blair announced from the beginning of his time a serious of measures to win over opinion, and the warm glow in opinion permeated through his period in office in spite of all the other things he did. Establishing goodwill and trust early is valuable.

The problem areas are measures which do good but sound bad. Tax cuts for the wealthy may fall into that sphere.

The most relentless drain on poll-ratings must be cuts and virtual cuts – ‘virtual cuts’ being where money was spent as an exceptional item one year and is not available the next, or where the same money is switched to different priorities.

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The year begins – 2020

There is no time for our politicians, in any party, to sit back and enjoy the ride. The work began the moment they set foot in Westminster, and the time to the next General Election is ticking away; presumably 1 May 2024.

There are few unavoidable fixtures before the election.

It starts with Brexit Day, finally, on 31 January 2020.  This is then followed by negotiations to reach a free trade agreement, or the essential parts of one, based on the Political Declaration, before 31 December 2020.

The next is the Budget each year;

The local elections, and in particular the London mayoral election on 7 May 2020 (in which the egregious Sadiq Khan is expected to walk home in spite of his having been worse that useless in office).

The Olympic games in Tokyo in 2020: not political, but a national morale-boost, usually.

The creation of the Constitution, Democracy and Rights Commission is likely to happen in 2020.

Then the American Presidential Election on 3 November 2020 – which will determine the course of negotiations for free trade across the ocean, and by indirect influence set a tone for political debate.

First thing though: Brexit. Consummating the event must not be the end of the Brexit campaign as the following months and years will be filled with claim and counterclaim about the effect it is having on the economy, and the ‘Rejoiners’ must not be the only voice heard.  The statistics must therefore be available and up front.

That same spirit of openness and demonstrable achievement must permeate through the years ahead. The new blue north is not a given in four and half years’ time, and the generation too young to know the reality of socialism will continue to fill the electorate from the bottom. A great deal of trust must be built up in spite of a cynical age.

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Mend the Kingdom – roll up that map

Give me the map there. Know that we have divided In three our kingdom

King Lear, Act 1, Scene 1

If Whitehall is to be tasked with mending the tattered relationships across the United Kingdom, it must first reverse its two-hundred year practice of driving it apart.  It may start by shredding all the maps in every Government office. They are three hundred years out of date.

When Great Britain was united three hundred years ago and more, it was the consummation of a process of unity that had been moving on since the Reformation, and the actual incorporating union of the mediæval kingdoms into one was intended to began a process of integration to the benefit of all. Something went wrong.  That may be the subject of another article on this site shortly. Now though the priority is fixing it.

Firstly, there is no shortage of Scots in the civil service: the service takes the best and brightest, or most complaisant, and none is disadvantaged through having been born far from the din of London. The issue is found in a deeper structure.

Many Whitehall departments have become, since devolution and often before it, mainly England-only, with some responsibilities across the nation. I once asked a high-level mandarin in one such department whether his was a England-and-Wales department with some UK functions, or a UK department with some England-and-Wales-only functions: the result was an embarrassed silence. This equivocal quality in such departments will ensure that the mindset in those departments ends at the Tweed and just has add-ons for Scotland and Northern Ireland (when they remember Ulster at all). That is not serving the residents of Scotland or Ulster with equal consideration.

Furthermore, where functions do legally extend only to England, that paper boundary can become too real, forgetting that there are people beyond it who are affected by the decisions made. Their needs are just as much a part of the responsibilities of a British government department.

Responsibility is the key, not power, for the one does not come without the other, and even if a particular power is for some reason legally limited to one regions there is responsibility for every Briton who is affected by it even those not usually resident in the region in question.

I recall some government guidance which gave (and I believe still does give) details of how to get particular documents signed in England and Wales and how to get them done in foreign countries, but with no hint on having them signed in Scotland or Northern Ireland. My enquiry about this to the office in question was brushed off with the assertion that they are restricted to England and Wales and cannot look at Scotland or Northern Ireland; and this to the extent of pretending they do not exist, even though the rest of the world was considered.

Maps are deadly. There are maps in Whitehall that end at the River Tweed, and others where the mediaeval border is so heavy it looks like an impassable frontier. Others omit Northern Ireland, though it is barely 12 miles of water apart from Great Britain. Such maps discourage those who look at them from thinking beyond. Maps mould the mind.

Shred the maps – all of them. Make a big heap in the courtyard and consign them to the flames. Let no more like that pass the portal.

Wipe the data maps. These are more frequent and pernicious: those with statistics, which show England as an island on its own. Wipe them from every database. No map in government, unless it is of a narrow region, should show anything less than the whole of the United Kingdom (or of the British Isles as that is the spatial reality, and all things must be based on reality). Where a map is used as a graph of statistics, those statistics may well relate only to England or England and Wales, but there will be equivalent statistics for Scotland and Ulster, so include them: the welfare and status of Britons of those parts are equally the department’s responsibility. If they can shy off that responsibility, nevertheless without a full picture of statistics for the whole of Britain, you have a partial and misleading picture. There may be lessons too to be learnt from the wider picture.

As to those hermaphrodite departments; split your teams. There are those whose concerns day-to-day are with a limited area, and they should not then be trusted to do Scotland as an afterthought. Where the responsibility is national, there are no internal borders. There should be maps with no borders to illustrate to those concerned that there is no border, nor has been one for over three hundred years. Borders on maps make borders in the mind, so have none.

Recently Holyrood adopted a law that the Scottish devolved government may not buy any map of Scotland that shows Orkney and Shetland in a separate box. Whitehall should adopt a rule like it: no government office may acquire nor produce any ‘national’ map that does not include the whole of the United Kingdom, nor any map that includes ‘the border’ as anything beyond normal administrative boundaries. That way our governors may lift up their eyes to the full extent of their responsibilities.

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Army of clerks

It is not true that the Ministry of Defence has more civil servants than there are soldiers – there are only half as many. That is still shocking though:  one clerk for every two regular soldiers. What do they do all day that is not already done by the General Staff or the regimental staff?

The navy, army and air force are already top-heavy in senior officers. The structure is basically that which served an army of millions and has not come to terms with shrinking to the mini-army we have today, which does not need such a multiplicity of generals let alone field marshals.  They are all fine gentlemen, no doubt, but you begin to suspect that they were promoted out of politeness. Balls at Mansfield Park may have glittered with admirals, rears and vices, but their great fleets of ships to command are no longer there, and mass retirement is something to be discussed in quiet corners.

The excess of generals is one thing, but being overbalanced by civilian clerks is a humiliation.

Maybe a cure could be to stick each one in uniform with a rifle and bayonet in their hand, and they might be an effective rearguard force – the Civil Service Rifles were a well-regarded volunteer unit from the Victorian period and formed a regular regiment which fought with distinction in the Great War.  I can see no sign of the desk-wallahs of today following their forebears though.

We come back to why we need a civil servant for every two soldiers.  It is not as if the clerk ever meets his two Tommies. It is a waste of breath: I do not know either.  Only those who have spent time in the depths of Whitehall will have any idea of what is actually done, and where the redundancies are, and those who have been there will soon go native. Maybe now we have a new army, of defenestrated ex-ministers, there is someone who can suggest what to do, from the outside and with knowledge of the inside.

The Ministry of Defence is a model of inefficiency, as were its predecessors it must be said.  Basic items that can be picked up for a few bob in civvy street are billed to the MoD at a 1000% mark-up and more, and soldiers still buy their own boots rather than rely on the dodgy stock issued to them, or did in my day.  The equipment is every more sophisticated and expensive, and sits in storage its whole life because a soldier’s work in the field still comes down to pushing a piece of steel through the enemy just as it was at Thermopylae.

(Imagination and innovation are the best weapons for an officer, which is seen in every great general and admiral from Caesar to Montgomery. Imagination and innovation are a horror to the civil service mentality. How the two can work together is a mystery.)

The men are not coming forward to serve these days. We no longer have starving men ready to join the ranks to fill their bellies, and no constant colonial adventure to draw the adventurer. Neither are there six-foot bewhiskered sergeants causing women to swoon at the sight and young men to join up in envy and emulation. What we do have is an inhuman, limp-wristed, computerised, out-sourced recruitment system that every soldier hates and which has presided over the greatest fall in numbers since the first day of the Somme. No minister may criticise their own contractor. Perhaps those who have escaped may do so.

Perhaps the Ministry of Defence is kept at in such numbers to administer a shell of the armed forces, which are ready to fill up to full strength when there is a major war, and the army is swollen to six million men as once it was. Still, it has been seventy-four years since the end of the War, and thirty years since the end of the Cold War, and even the Blair Wars did not appreciably increase the army (or even the Royal Marines, who get handed the brunt of special operations). Are they dreaming of greatness never to come again, like a country house once teaming with glitering parties and a battalion of staff, now left an echoing shell in case the days come again?

Another thought comes to mind: increasing defence spending is a vote-winner, but having got the funds, what can it be spent on, where there are no men to fill the uniforms? Petty clerks is the answer. There – we can have increase spending on “defence” but not a penny more going to war-fighting capacity.

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