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Daily View: Are judges battling MPs?

Clare Spencer | 10:00 UK time, Tuesday, 31 May 2011

Commentators are describing what they see as a battle between MPs and judges following differing views on superinjunctions, the sacking of Haringey's director of children's services Sharon Shoesmith and the release of a burglar to look after his children.

of being an "inward-looking and obstinate a private clique" over issuing super-injunctions. a burglar being released to look after his five children, that this will add to the long list of abuses of the Human Rights Act's right to family life:

"I have no doubt that, following the freeing of the burglar Wayne Bishop, dozens of lawyers clutching copies of the Human Rights Act will now be queuing up in the hope of getting their clients out of prison.
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"As Article Eight has spawned numerous unforeseen privacy and deportation cases, so it may now be used to enable prisoners to walk free from jail. I suppose it is one way of achieving Ken Clarke's ambition of fewer prison places, but it is wrong and unjust, and must be stopped.
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"Will the absurdity of Mr Bishop's early release - an absurdity so extreme as to be beyond parody - finally galvanise David Cameron into action?"

The against politicians' criticisms but admits that they could do more to improve their image:

"The judges' defence, that they do no more than interpret the law as parliament has made it, is true, though not the whole story. Politicians are wrong to moan that judicial decisions threaten the sovereignty of parliament, even when - as the court of appeal did last Friday in the Shoesmith ruling - upholding the rule of law checks governmental action. But it is also true that judges make choices, and unless MPs subsequently change the law, those choices determine what the law is.
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"The set of standoffs between the legislators and what used to be called the least-dangerous branch of government are triggering fresh attacks on the independence of judges, based on the argument that "political" law-making demands political accountability."

Political blogger to explain why he backs up three appeal judges' decision to overturn Sharon Shoesmith's sacking by Ed Balls without a proper procedure:

"The man in power doesn't get to do what he likes (or thinks in his judgment is in the public interest), but only what is already written down that he is allowed to do. He must, although he be elected and ever so high and mighty, follow the same procedures as the rest of us...
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"Don't forget, this law stuff, this civil liberties stuff, the whole set of assumptions about public hearings, assumptions of innocence, juries, double jeopardy, the rule of law. They are not quaint archaic hangovers, they are not there just to hamper the pursuit of the guilty. They are there to protect us, the citizenry, from the politicians, the people wielding the power of the State."

that the conflict between MPs and judges has only just begun and at the heart of it is the UK's stance on human rights, something she urges to take seriously:

"There will be no prospect of progress, and every chance of disaster, unless judges pick their fights with care (no more easy injunctions for rich adulterers), politicians stop abusing their role (no more treating the Commons chamber like the parliamentary wing of Twitter) and society abandons an insular view of human rights under which unpopular minorities, prisoners included, are the legitimate prey of the lynch mob.
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"As Ratko Mladic, the butcher of Srebrenica, is shuffled towards the dock, it pays to recall the blood sacrifice, the genocide and the torture that ensue when the rule of law collapses and human rights are scorned. Fulminating politicians, murmuring judges, greedy lawyers and outraged citizens should all remember the necessary compromises of a nation purporting to be just and fair and free."

Earlier last week the super-injunctions and previous prisoner rights conflict highlight a constitutional crisis - where it isn't clear who is the authority on a matter:

"MPs and judges are both coming to believe that the other has broken the constitution. Many MPs believe that judges are thwarting the will of Parliament, usurping the power of judicial review so that it is being transformed into judicial supremacy. Judges reply that they are doing no more than applying the Human Rights Act as Parliament intended, and that MPs have no right to flout a court order.
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"The British constitution is coming to mean something different to judges from what it means to Parliament. The argument from parliamentary sovereignty points in one direction, the argument from the rule of law in another. How will this be resolved? One possibility, favoured by many MPs is to reinforce Parliament's sovereignty by modifying the Human Rights Act, and perhaps even to withdraw from the jurisdiction of the European Court of Human Rights. The Government recently established a commission to investigate these options.
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"The alternative would be to transform a state based on parliamentary sovereignty into a genuinely constitutional one by enacting a constitution."

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