The Law is the Law

07/09/2020 By ACOMSDave Leave a Comment

The law is the law, or is it? According to our Prime Minister it only applies to him when it serves his needs!

I have just read ‘The Secret Barrister’s’ article “Justice League” which was published The Guardian’s Review Magazine pages 6-9 Saturday 22 August 2020.

Law - it needs to be balanced — The Law – it needs to be balanced

This is a large mouthful to say, and even to write, but it is necessary to refer to this article and draw your attention to it, as for many of us the law and parliament are inseparable! However, they are not; according to the Judges and Parliament, …The ultimate decision remains with Parliament and not the judiciary. Ultimately, the judiciary does no more, or less, under the 1998 Act than carry out its constitutional function of interpreting and applying the law enacted by Parliament. They only have such power as Parliament gave them in the Human Rights Act 1998.

The Attorney General is the link in the chain who provides guidance to parliament and the judiciary – however, a former Attorney General, Lord Mayhew of Twysden, said:

…the Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the government itself acts lawfully.”

In his article, the Secret Barrister refers to how part of the government and also the new media seems to think that the judiciary has attempted to interfere with parliamentary actions and decision. This is a complete fallacy, for parliament to work successfully, in order to maintain parliamentary sovereignty, be some legal limit… and that is what the judiciary provide. Judicial review is not, as politicians would have the public believe, a tool by which judges overrule a political decision that they disagree with. The questions that the courts decide are those of lawfulness, applying common law principles developed over centuries.

The Secret Barrister sums up by saying …if we lose judicial independence, we lose the rule of law. The day a judge makes a binding decision affecting the rights and liberties of one of us, not on the legal and factual merits, but with a nervous glance to the press and public galleries, or with a beady eye on political favour or punishment, is the day that the decay in our democracy turns terminal….

The day that this happens is the day that the government becomes omnipotent and Big Brother becomes the order of the day.

The government must remain accountable, and the judiciary must remain independent from government.

The Collini Case – Book Review

11/06/2019 By ACOMSDave

Title	The Collini Case
Place	West Germany
Publication date	4^th July 2013
Pages	PB 208
Price	PB £7.18
Author	Ferdinand von Sabruch
Publisher	Penquin
Edition
Special features (maps, etc.)
ISBN	978-0718159207

Firstly I must note my self-interest in legal stories, and ‘The Collini Case’ delivers for me in every way. whether it be in book form, TV, radio or movie.

I remember watching Perry Mason, The Defenders, and lately (ITV Series taken from USA). But also The Client by ….. Grisham which I read as a book and then watched as a movie and TV series.

I am also an ardent fan of police/detective procedural, having read the Moonstone when I was 8 years old, all of Sherlock Holmes, and most of John Buchan’s books; never mind the various police TV series over the years.

Yes I love the law, but I am not a lawyer/solicitor/or policeman!

So when I picked up this book, ‘The Collini Case’ second hand in a charity shop for £0.50, it was firstly because it was about the law, more specifically the law in Germany; and that it was about the second World War, the Nazi and economic regime over that period, and the fall out after the war, and it was about people.

The people are easily defined:

the lawyer
the murderer
the murdered person
the love interest
The mentor (?)

The law in this case is that of the law in Germany following reunification of West and East Germany. The German legal system is that of civil law which is founded on the principles laid out by the ‘Basic Law for the Federal Map of Germany, … but many of the most important laws were developed prior to the 1949 constitution. It is comprised of ‘public law’ which regulates the relationship between a citizen/person and the state… This area of law has also been subject to a wide array of influence from Roman Law to Napoleonic law.

I have already mentioned the main characters in general terms, the story is relatively simple; ‘a man walks into a hotel and kills another man. The murderer is a well-respected Mercedes-Benz worker, Fabrizio Collini – a man of unblemished record, and with no apparent reason for committing the murder. He doesn’t run away but refuses to defend himself to the police. His lawyer, assigned by the court, gets nowhere with him, and even though he is almost concerned with ‘just’ doing his job, he follows his legal nose, discovers his client’s past and therefore his reason for the murder and then he has to put together a mechanism for the prosecution to introduce the evidence so that he has the right of rebuttal.

Apart from the initial murder, there is no further ‘American’ style action. It is a story about thinking, about research and also about the good, old-fashioned dogged investigation.

The sting in the tale is the impact that this story had on the German legal system and the German government after its publication. The outcry over ‘war criminals’ escaping justice led to the German government reviewing its legal system.

Links:

Amazon: The Collini Case
Cineuropa trailer:

Retrospective Justice

04/07/2017 By ACOMSDave

When I read this article, and also subsequent articles from other journalists, I was of a mind that it is what government does – changes the goal posts to suit it needs – in this case retrospective justice. However, during my research, I was taken to the following publication ‘The legislative sovereignty of the Westminster Parliament‘ and the following quote

Each Parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place

also

Parliament has the power to legislate retrospectively as well as prospectively. This means that Parliament can render illegal and impose penalties on actions which were perfectly lawful when they were committed. Also, actions which were unlawful at the time of commission, may be rendered lawful or not subject to any legal sanction or proceedings.

So the end result would seem to be, that governments are unique, and resolve their issues in their own way, without necessarily having to conform to what previous governments have said. However, legislation is still legislation, and it would seem to me that for an integral part of a published Act of Parliament to be changed, then it must be debated in the House and agreed by both Houses. The Northern Ireland (Miscellaneous Provisions) Act 2014 set the relevant date as being 1 January 2014, not 2017; so we must only assume from this change that ‘someone’ has something to hide.

Skating on thin ice – Retrospective Justice

So an end to donation secrecy in Northern Ireland. It’s been long awaited, but today James Brokenshire made good his party’s promise in their Northern Irish manifesto… From Hansar…

Source: End of donor secrecy (flick of a legislative wand and NI ‘dark money’ is a thing of the past)…

Dictatorship 1, Democracy Nil – The People Loose

31/01/2017 By ACOMSDave

Democracy needs to be nurtured and looked after, if not then it gets strangled and we end of with a barren land. (David McFarlane)

Law, as it had been known, was no longer decisive in legal proceedings. Judges, now more than ever, were working toward the Fuehrer. Judicial independence, once the ideal of the German state, nearly vanished….Jim Snowden (https://jimsnowden.com/2013/11/06/the-nazi-judiciary/)

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”..John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902)

The problem with being an ‘outsider’ to another countries politics, is just that, you are an outsider. I don’t profess to understand American politics, but I do reserve the right to comment on what I perceive to be a fundamental change to society and the impact that it is having on others. When Hitler came to power, even though he had been well treated by the German Judiciary, he set out to control the courts and to remove fundamental rights. He succeeded, and to those who suffered because of this came the ‘Holocaust’ and the ‘Death Camps’. The United Nations states ‘The Rule of Law and Democracy Section stands as OHCHR focal point for democracy activities.’ The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. The decision by President Trump goes in the face of all legal precedents except when you look at dictatorships such as Nazi Germany etc. Indeed it bares direct comparison with Hitler,

I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation*, and that from now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour. (Trials of War Criminals before the Nuremberg Military Tribunals, vol III, the Justice Case,Washington, 1951 Page 51″)

Most of the world did not stand up to Hitler and his political aspirations, and the world ended up in a world war. In all conscience I cannot stand by and say nothing, President Trump is going down a very dangerous road, and the problem is that he is taking people who didn’t vote for him with him!

Donald Trump has fired acting Attorney General Sally Yates after she ordered Justice Department lawyers to stop defending the president’s controversial immigration orders.

Source: Donald Trump sacks US attorney general Sally Yates for defiance over immigration ban – live

Gay marriage law comes into effect in Scotland

19/12/2014 By David McFarlane Leave a Comment

Douglas Pretsell, from Edinburgh, and Peter Gloster, from Melbourne, formalised their marriage in Sydney

Douglas Pretsell and Peter Gloster formalised their marriage in Sydney

Scotland’s new law on same-sex marriages has come into effect.

Existing civil partnerships can now be converted to a marriage and other same-sex couples can give notice of their intention to wed.
The new legislation was used for the first time shortly after midnight when one couple upgraded their civil partnership at the British consulate in Sydney.
The first gay weddings in Scotland will take place on Hogmanay.
Because Australia is 11 hours ahead, Douglas Pretsell, from Edinburgh, and Peter Gloster, from Melbourne, completed the paperwork to formalise their marriage hours before registrars open for business in Scotland.
The couple have been together for seven years and had their civil partnership in August 2010 at Fenton Tower in North Berwick, East Lothian.
‘It’s official’
Mr Pretsell told BBC Radio’s Good Morning Scotland programme: “It was kind of coincidental. we weren’t originally intending to be the first at all.
“We sent an email to the consulate asking how long after the weddings came in that we would be able to change our certificate.
“We got an email back from them, asking if we would be able to come in at 11am on the 16th and saying we would probably be one of the first in the world.”

Leanne and Marie Banks signing the documents

Leanne and Marie Banks were one of the first gay couples in Scotland to become married

The couple earlier said: “We always considered our civil partnership to be our marriage, but in the eyes of the law and society it wasn’t held in the same regard.
“Prior to today, same-sex couples were deliberately treated as though our relationships were inferior and not worthy of the same recognition or respect.
“Well, from today it’s official, we are married and we have the certificate to prove it.”
‘Day of celebration’
One of the first gay couples to become married in Scotland were Leanne and Marie Banks.
They were at Dundee Registrars’ office at 08:45 to sign the documents.
A number of other Scots couples, already in civil partnerships, are also planning to make the conversion.
Others wishing to become married must give the normal 15-day notice period, meaning the first weddings can take place on 31 December.
Tom French, from the Equality Network, which ran the campaign for equal marriage in Scotland, said: “Today is both a day of celebration and a hugely important step forward for LGBTI rights in Scotland, both in terms of equality in the law and the way in which same-sex relationships are viewed in society.
“In recent years Scotland has become a leading light on LGBTI equality, with one of the most progressive equal marriage laws in the world, helping to create the fair and equal society we all want to see.”

The first gay weddings in Scotland will take place on 31 December

Colin Macfarlane, director of Stonewall Scotland, said: “Many of the couples celebrating today and in the weeks and months ahead have been together for decades and in a civil partnership since they were introduced in 2005.
“While there is still lots to do before the lived day-to-day experience of many lesbian, gay, bisexual and transgender people is truly equal in Scotland, this is a day of celebration and we know these ceremonies will be a wonderful early Christmas present for many couples, their friends and families.’
The law on same-sex marriages has already changed in England and Wales.
The change in Scotland comes as a survey revealed a huge rise in support for same-sex marriage over the past 12 years.
More than two-thirds of people (68%) agreed that gay couples should have the right to marry, according to the figures from the Social Attitudes Survey, which tracks public opinions on a range of subjects.
The figure compares with just two-fifths of the public (41%) in 2002.
The 2014 survey suggested fewer than a fifth (17%) of Scots were against same-sex marriage, compared to 29% in 2002.
Younger people were more likely to believe gay couples should be allowed to wed than older Scots, with 83% of 18 to 24-year-olds in favour compared to 44% of those aged 65 and above.
MSPs approved the Marriage and Civil Partnership Act at Holyrood earlier this year.
The Scottish government said the move was the right thing to do, but Scotland’s two main churches – the Catholic Church and Church of Scotland – are opposed.
The legislation will see religious and belief bodies opting in to perform same-sex marriages, and ministers have stressed that no part of the religious community would be forced to hold such ceremonies in churches

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-30486804

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