Hitting the Balls out of Court: Are Judges Stepping Over the Line?

Those judges are doubly mad! In the first place, because they are politically mad, and in the second place, because they are mad anyway. If they do that job, it is because they are anthropologically different from the rest of the human race.

No, not the Home Secretary, expressing her views on the Strasbourg court or its recent view that the reach of the European Convention on Human Rights stretches far beyond Europe. They were a response to what might be described as a number of little local difficulties with which Prime Minister Berlusconi was faced, rather than a difference of view as to legal principle. But before we condemn those words as little more than the oft‐heard response of a defendant caught with his hands in what decorum demands we describe as the till, we should pause for a moment to reflect on two significant features of that customarily moderate criticism: first, that it appeared to be yet another example of an expression of frustration by a politician at judicial usurpation of the proper function of the democratically elected representative of the people, and, second, it was a response to the result of a particular judicial determination, a reaction to the decision of the Italian magistrates to pursue ‘il Divo’, Andreotti, in respect of alleged mafia connections.

Although I did not know John Creaney, I have some insight into his importance and influence because of my experience of one of his pupils, the former LCJ of NI, Lord Kerr, since he now sits in our Supreme Court, where he frequently overrules my decisions. I shall not dwell on John Creaney at this stage…e has an important role to play in my conclusion.

The starting point for my subject tonight is the frequently expressed fear that the balance between the role of the judge and the role of an elected government is being undermined by the influence of a foreign court in Strasbourg. But that is only the spur. Tonight I am not going to debate that question yet again. I want to underline certain features of that debate which I regard as significant; they should not be forgotten during the seemingly endless controversy as to the meaning, scope and application of the Convention.

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