THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain

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I'm 'Enery the Eighth I am

Concern over use of 'Henry Vlll' powers to overturn acts of parliament | The Law Gazette.

It's time for every liberty-minded blogger who has retired, jaded, after the fall of Labour to return to the fray. Why? Because, in the words of Joshua Rozenberg in the Law Society Gazette last week;

The coalition’s approach to legislation is neither conservative nor liberal. That much is clear from the new Quangos (Bonfire) Bill, or the Public Bodies Bill as it is more properly called in parliament

The Bonfire of the Quangos is a notion much to be applauded. What is emphatically NOT to be applauded is that the Coalition has slipped into the Bill a provision allowing ministers to amend Acts of Parliament. Sound familiar? That's just what Labour ventured in the Legislative and Regulatory Reform Bill. And it's just as wrong. Witterings from Witney (to whom a tip of the hat) quotes from a letter he received from William Hague, Oliver Heald and Richard Benyon (his then Conservative MP) about Labour's attempt to subvert Parliament's power;

I can assure you that the Legislative and Regulatory Reform Bill will receive a robust opposition from my colleagues and I in Parliament. We recognise this as a devious means by which Ministers will seek to avoid the sovereignty of Parliament. It is another example of the contempt with which this Government holds Parliament and our national institutions.

Now all three gentlemen are about to support the introduction of its equivalent. The notion that this government is in any way a greater friend of liberty than the old one has been exploded. Ladies and gentlemen, to arms!


Hard cases and bad law?

Divorce laws should not be made by the grotesquely rich | Catherine Bennett | Comment is free | The Observer.

Pace Catherine Dorothea Bennett, Oxford grad., former Baroness Sackville and current squeeze of by-no-means-short-of-a-bob-or-two John Humphreys, laws are not made by those who are ("grotesquely" or otherwise) rich. In England & Wales they are made by the judges or Parliament. In the former case, highly experienced ex-advocates adjudicate real-life situations, setting binding precedents. In the latter case ex-postmen and PR men adjudicate the outcome of future situations based on their sick imaginings and/or grotesque political views. Give me judges and reality any day.

As this case illustrates, judge-made law evolves as society changes. At law school I was taught that pre-nuptial agreements were void ab initio as being contrary to public policy, which favoured the institution of marriage. That is now no longer true. While some of us may regret it, our society no longer regards marriage as so important. More than half Britain's children are born out of wedlock, after all. The Common Law of England is quietly doing its stuff as it has, reliably, for centuries. This flexibility, Ms Bennett dismisses haughtily:-

It is ... ancient tradition for the law never to be decided quite firmly enough that ... rich misers and resentful spouses cannot challenge it in future, which ensures that lowlier divorcing couples can never receive clear advice from their lawyers.

Judge-made law gave England & Wales one of the best (and certainly the most flexible) legal systems in the world. If ever you find an English law stupid, enquire further. You will usually find it originated in Parliament, not the courts. As a law student, I once asked Lord Denning if it was right, in a democracy, that he - an unelected judge - had had such an influence on English Law. He replied jokingly "Given the quality of the members of the House of Commons, young man, I think you are better off with me." He had a point. Democracy is the least bad way yet implemented of choosing men and women to administer the affairs of the state but does not guarantee the quality of legislators. English judges gave you equality before the law, habeas corpus and innocence until proven guilty.  Parliament gave you control orders.

Ms Bennett seems anyway far more exercised by the amounts at stake than the principle under discussion. Perhaps it's envy? Perhaps the amount at stake when she divorced the 7th Baron Sackville was not as much as she could have wished?

Of course it is an ancient tradition that English divorce law should be decided by cases brought by impossibly rich misers or their resentful spouses.

It's true of course that the judges more often adjudicate on the troubles of the rich. That doesn't make the precedents less useful. In fact, let me put this in terms our Dorothea might approve of; the rich pay a kind of "progressive" taxation whereby the money they spend on litigation benefits the little people. Arguably, it was the first such taxation in our history.

The thrust (if not the tone) of her point, when she finally gets to it after tedious paragraphs of envy-fuelled ad hominem (and gossipy trivia more worthy of Hello than The Observer) is not as bad as one might fear;

...if the Radmacher precedent saves just a few spouses from archaic laws and modern lawyers at the same time that it propels ex-trophy wives into gainful employment, the eponymous divorcee probably deserves her triumph. If nervous couples are thereby nudged up the aisle, the Church of England might also find itself indebted...

Quite. And can I just add that the only person (apart from the Supreme Court judges and my learned friends on both sides) who comes out of the Radmacher case with honour is the lady's wise father. Without his stern defence of her interests when she was "head over heels" in love, there would have been no pre-nup to uphold. Well done, sir.


What rights are conferred by your son being murdered?

Jon Venables could be killed if his identity is revealed, key judge warns | UK news | The Guardian.

Any parent feels for Denise Fergus. We can sympathise with her unabated anger against the two young children (now adults) who killed her son. But her insistence that as James Bulger's mother she has a "right" to know what his killers are doing now is quite wrong. They are so loathed for what they did as children that, without new identities, they would have no chance of a law-abiding life. If charged with another crime, they would have certainly have no chance - under their real names - of a fair trial.

Their sentences are served. Perhaps some may feel they were not long enough. Others may feel they should have been executed. But they are entitled to the same chance to sin no more any of us would expect when we had paid the price of a crime. Lady Elizabeth Butler-Sloss's original order protecting their identity was therefore both wise and fair. We can forgive Denise Fergus for her anger and hatred. We can perhaps even understand why she wants her son's killers at the mercy of the mob. But it would be very far from justice.

Politicians have repeatedly exploited this tragic case. Tony Blair used it as his "broken society" moment; in effect blaming the Conservatives, not two profoundly disturbed children (and the parents who raised them), for Jamie Bulger's death. Michael Howard was no better. As Home Secretary, he gave in to a Sun campaign for their minimum sentence to be extended.  Lord Donaldson gave the civilised view of that incident when he described it as "institutionalised vengeance" by a "politician playing to the gallery."

Someone close to Jack Straw recently decided to announce that Jon Venables was back in custody. Why? There was no need disturb Ms Fergus's sleep or arouse the vengeful mob. Presumably it was an attempt to make political capital by associating the government with tough action against a hated individual. New Labour's political instincts have failed it again however and the gambit has gone badly wrong. I am sad that some usually-sensible voices in the British blogosphere are, in effect, siding with a lynch mob. They have been duped by cynical politicians and are playing right into their hands.


So much for free movement of goods and labour

FT.com / Europe - Poles returning home face car trouble.

As a lover of Poland who lived there for 11 years, I know something about this story. I used to have a right-hand drive car in Warsaw. I drove it from England in 1992 and used it for 8 of the 11 years I lived there. I drove my family all over the country safely and pleasurably. The car was foreign-registered and insured throughout. She left the country frequently enough for that not to be an issue, but I always thought it ridiculous that it was not possible to register her locally.

2420647-A_sea_of_light-PolandPoland has an appalling record on road safety. The fatality rate is four times that of Britain and double that of Germany. The worst death toll is on the weekend of the All Saints holiday, when Poles visit the graves of their dead to keep a candle-light vigil. This is a social, as well as a religious, event that involves much sitting on gravestones drinking vodka. If a given family has dead relatives in more than one city, it also involves a motorised dash from one graveyard to the other in the depths of the Polish Winter. All too frequently, that ends in tears.

Poor roads, poorly-maintained cars, lots of winter snow and ice and an aggressive driving culture account for the rest of the accidents. I have often remarked to Polish friends that they must be very good Catholics indeed as they drive as if in a hurry to the afterlife. Right-hand drive cars are certainly not a factor in many accidents. Poland's auto-routes and urban free-ways (sensibly, in my view) permit overtaking on both sides. So I was safer than the other drivers for more than half the time as (guess what) I usually chose the side to overtake on which I had better visibility. When not on such a road, my driving position was only a problem to me, as I had fewer opportunities to overtake. Perhaps the Polish judges can't imagine not overtaking, regardless of safety? Probably so, as in my experience the standard of driving among Polish lawyers was no higher.

Britain, of course, has no problem with thousands of migrant-labourer Poles driving their left-hand drive cars around our islands. So much for fairness. As between nations, reciprocity is surely the least one can hope for. Though I am not holding my breath for Muslim countries to take as liberal an approach to the building of Christian churches as, say, Switzerland to the building of mosques.

Like most legal restrictions, this is small-minded busy-bodying dressed up as concern for public safety. Having watched Poland enact hundreds of legal reforms to prepare for EU accession (the only time in my life I saw the EU do any good), I am sad to note that it has already (as I predicted to my Polish friends a decade ago) begun to approach EU law as the French do; cynically and selectively.
 
Photo credit: VirtualTourist.com

A tragedy in one act

Edlington case is symptom of 'broken society', says David Cameron | UK news | guardian.co.uk

The local authority began this drama by apologising for its failings. This was both a political statement and an exoneration of every other human being who touched the lives of the young sadists' family. If the reliably incompetent state is responsible for their conduct, then no-one else is. Never mind that "the local community" is tough enough to run them out of town now. They were not tough enough to intervene in the horrors of the boys' upbringing. No, that was up to Social Services, as the council sadly confirms.

Enter David Cameron, stage right. Beneath the fresh, fabric softened woolliness of his lines is the muffled echo of a standard right-wing point. These boys were the inevitable products of welfarism. Bred merely to maximise state benefits, they were unwanted and unloved. No care was taken over their welfare or education nor even to screen them from their parents' vile lives. They grew up, poor creatures, looking on. And they learned, as children will, from their role models. Their outré, Tarantino-like violence is therefore really no surprise.

The left-wing characters in this drama have yet to make their entrances. But there are noises off. The BBC and Guardian accounts mention the horror movies and the pornography meaningfully, without yet seeking to blame them directly. One account (from the BBC) says;

"...the two brothers made their own horror movie..."

Ho hum. Perhaps the trendy QT, purveyor of amusing violence to the intelligentsia, will have a job for them on their release? Once the initial horror has abated, however, a dancing line of Guardianistas will take to the footlights for the finale. And the prescience of a slave in ancient Greece will be proved once again. 

A great city was besieged and its inhabitants were called together to consider the best means of protecting it from the enemy. A bricklayer earnestly recommended bricks as affording the best material for an effective resistance. A carpenter, with equal enthusiasm, proposed timber... Upon which a currier stood up and said, "Sirs, I differ from you altogether; there is no material for resistance equal to a covering of hides; and nothing so good as leather.

The Tory solution will be less welfare. The Labour solution will be more. The Tories will tell us the social workers failed. Labour will tell us that if they were better paid, more expensively trained and more numerous, such horrors could be avoided. The puritans on both sides will blame the likes of Quentin Tarantino for de-sensitising children never sensitised in the first place. The right will seek to ban violent movies and the left (if intellectually consistent) will seek to set a minimum price for horror movie rentals so that only the rich (already lost to morality) can be exposed to their sickening influence.

Finally a chorus of legislators will tell us that new laws will prevent a recurrence. And the curtain will go down on the whole cast bowing before a backdrop of the gleaming city of our collective conscience. Encircled, of course, by a useless leather wall. The drama will have been satisfying though, and the political classes will conceal behind masks of impeccably concerned sadness, just how much they enjoyed their own performances.


As right honourably hung for a sheep as a lamb?

MPs facing police over expenses look to ancient Bill of Rights for protection - Telegraph.

Their distinguished counsel will, I am sure, have told them this is a long shot. They have nothing to lose in running it though. Certainly not the respect of the electorate. Perhaps they even have in mind to maximise the embarrassment of the Government in election year, in the hope that a deal can be struck behind closed doors? I suspect even this brazen regime would find that too hard. Besides, they are using the Labour Party's lawyers. Such a tactic would involve a major conflict of interest.

I estimate that as many as one-third of our MPs would now be facing criminal charges if they had filed their expense claims (under similar rules) to a private company. If even those few who were most brazen; claiming for non-existent mortgages, (allegedly) forging VAT receipts etc., were to be let off the hook surely even our docile electorate would riot?

I confidently predict these "honourable" gentlemen are going to gaol as token sacrifices to legality. There is honour among thieves politicians however. Watch out for the jobs they find when they have served their brief, cushy sentences. I suspect their sacrifice will be rewarded with juicer opportunities than are usually on offer to ex-offenders.


Only a Kennedy could get away with it

Airbrushing out Mary Jo Kopechne by Mark Steyn on National Review Online

I had hoped never to mention that odious family again, but the continuing lionisation of, arguably, the worst of them prompts me to refer you to the linked article by Mark Steyn in America's National Review.

Mary Jo Kopechne, according to John Farror the diver who found her body, lived for at least an hour, maybe more, in an air pocket in Kennedy's car while the late senator slept it all off. At best, we can assume she would have died anyway, even if he had called for help. At worst, we have to imagine an innocent star-struck girl taking her time to die.

She did not have long to realise what most misguided young leftists take years over; that her heroes were scum.

Any doubts I had about President Obama died as he gave his funeral oration for Kennedy. Any doubts that the American Left was quite as toxic as our own died when I read this (and headed disbelievingly to the source to check it):

At the Huffington Post, Melissa Lafsky mused on what Mary Jo “would have thought about arguably being a catalyst for the most successful Senate career in history . . . Who knows — maybe she’d feel it was worth it.”

Right. She would have died willingly, so that Ted Kennedy could be the Democratic Party's king maker. I am sure she thought that during her wait to die. As for Kennedy, he thought it was funny. He asked his friends for the latest Mary Jo jokes. And he named his dog Splash.


Justice -vs- Social Justice

Groucho Marx said that military justice bore the same relationship to justice that military music bore to music. One might also say that social justice bears the same relationship to justice as social housing bears to housing (or social security to financial security).

Individual justice has always been about equality "before the law". The history of English Law has had much to do with ensuring that - as far as practicable - the law applied equally to all. It may be that the affection in which "equality" is held in Britain has much to do with this history. But there is a big difference between treating individuals equally and trying to equalise relationships between social groups.

Women earn less than men. Tall people earn more than short people. Both statements are true, on average, but unless you understand why, you are in danger of doing profound injustice if you try to rectify the inequality group by group. It is certainly a mistake to assume - as social justice merchants always do - that the group at a disadvantage was put there by the other.

I am tall and I conform to the group stereotype of being a high earner but I don't oppress short people.  I don't even laugh at them (much). Equally, I am a man and I have never knowingly oppressed a women (though I have been oppressed by one or two). Attacking the "social" injustice by punishing me as part of an "oppressor" group is to do profound injustice.

So often, that is precisely what governments focussed on "social justice" attempt. Having identified an "oppressed" or "vulnerable" group in need of help, they look for a relatively better-off group to characterise as "the oppressor." Then they penalise that group in order to "equalise" it with the other.

The results of this simple-minded thinking have been catastrophic. Consider the following examples. Would you describe them as just?

  • A heterosexual man is murdered on his way home from the pub. A homosexual man is murdered on the same route the next day. Both killers are caught and prosecuted. The second murder is deemed a "hate crime" and so the punishment is more severe. The first is presumably, as Gene Hunt put it, "an I really, really like you crime."
  • A nurse offers to pray for a patient and does not press the matter when the patient declines. She is subject to disciplinary action for "failing to show a commitment to equality and diversity." The logic appears to be that she is part of an "oppressor" religious majority from whom "oppressed" religious minorities must be protected.

In the first example, in effect, society values the heterosexual's life less than the homosexual's. Presumably the justification is that the homosexual belonged to an "oppressed group" but no regard is had to whether the dead heterosexual or his grieving family belonged to the "oppressors." Both men are equally dead. As individuals, it seems to me that both were equally important and that both killers were equally bad. It is nothing less than evil to treat the murder of one as "worse" than the murder of another.

In the second example, I am at a loss to understand why what the Christian nurse did was any worse (or to put it sensibly) any less kind, than if a Muslim nurse offered to pray to Allah for me. If that happened, I would not be offended, I would be touched. In my recent family crisis, friends from all over the world offered to pray to their various Gods for me. Atheist though I am, I was moved. Who in their right minds would not be? They were expressing concern for me and my family and their intent must, in any sane world, count for something.

It seems to me that social justice is a very long way from justice and that "social" is a prefix generally to be regarded with suspicion.


A degraded nation

Baby P's father to sue Haringey Council - Telegraph.

The natural father of Peter Connelly, "Baby P", with no apparent sense of irony, is suing Haringey Council for negligence in the discharge of its duties. The council's social workers, he says, failed to protect his son. For shame.

Relationships end, of course. Fathers often have to leave their children in the care of their ex-partners. Indeed, due to what Harriet Harman might (if she were at least consistent in her foolishness) call "institutional sexism" on the part of the family courts, men can seldom obtain custody. Yet if ever a father could have done so, it was this man. If there exists a mother less fitted to the care of her child than Tracey Connelly, I hope never to meet her. His father must have known the true character of Peter's mother. Knowing it, how could he leave his son in her care?

Peter's parents lived together for the first three months of his tragic life. After their relationship ended, and the monsters who killed Peter moved in, the father had continued access to his son. Given what we know now, it is hard to conceive that a loving parent could have failed to notice his distress. A loving father with occasional sole charge of the boy had more opportunity to clean off the chocolate smeared on Peter's injuries than a social worker. We are told that Peter reached out to him, screaming "Daddy, Daddy!" when handed back to his tormentors shortly before he died. The best that can be said for this hopeful litigant is that Peter thought him a better carer than his mum. It's hard to think him more than slightly better.

So, the more true his accusations against Haringey's social services, the greater his own guilt. If he is innocent because he was deceived by Ms Connelly (who would have to be considerably more cunning than she looks), so much more so (given their lesser knowledge of her and access to the child) are the social workers.

StepfatherAccomplice If I were him, I would be too tormented with guilt to function, let alone to calculate the monetary value of my loss. But this product of the Welfare State is made of sterner stuff than me. He confidently denies all suggestions that he might be to blame. He believed his ex's explanation for Peter's injuries; that the child was "clumsy," though he had opportunities to observe Peter himself. Are we to believe he didn't know his son was on the child protection register? Are we to believe he could not discern the true nature of the brutes who lived with Peter and his mother?

I am sure he is as sincere in his claim as in his desire for £400,000 in damages. It makes sense in the warped logic of underclass Britain. How could he think himself to blame when the Welfare State denies the very notion of  personal responsibility? The "caring" apparatus of the "progressive" British state deplores the concept, as witness the agonising over the cruel fate, not of the dead child, but of his killers. After all, they are not responsible either. They are the products of their social environment; mere automata to be successfully reprogrammed if only the taxpayers would not be so mean about employing enough social workers. Haringey Social Services may not like being sued on this occasion, but they share Peter's father's underlying objective; to supplant the responsibility of the parent with that of the state. If he wins his claim, they will soon realise they have been given a stick with which to beat the ungenerous taxpayers.

Not only the jobs, but the ideological integrity of its employees depends upon the notion that the citizen is a passive product of his environment; that he can't take care of himself, can't educate his children, can't look after his family without their benevolent intervention. By their own logic, as they are the only truly responsible people, this man's claim should succeed. But by the same logic, since in truth the health and welfare of every human depends on self-reliance and the loving support of family and friends, we are all damned to some (let's hope lesser) variant of Peter's fate.