justice - tim's first edit for the sheriff.… · paul carter greg clark mp stephen crabb mp...

thelocalistpapers4. Send for the Sheriff

The framing and execution of the law has become remote from the people who liveunder it. Judges, police chiefs and, increasingly, international accords lay down theapplication of criminal justice, often in such a way as to frustrate the decisions ofelected representatives.

This paper proposes a radical decentralisation and democratisation of justice. Itsuggests passing powers from global human rights quangoes to elected nationalparliamentarians, and from judges and to elected local Sheriffs.

International treaties should come before Parliament for annual readoption,lapsing if they fail to secure a majority. Senior judges should be appointed following open parliamentary hearings. The deployment of police resources, the prioritisation of offences and thecontrol of budgets should be the responsibility of Sheriffs, elected on a countyor city basis. Sheriffs should also take over the functions of the Crown Prosecution Service,acquiring the right to set local sentencing guidelines (although not to interfere inindividual cases). Parliamentary supremacy over foreign law codes and domestic courts should beguaranteed in a Reserve Powers Act .

Centre for Policy Sudies57 Tufton StreetLondon SW1P 3QL

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© Centre for Policy Studies, June 2007

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Printed by the Centre for Policy Studies, 57 Tufton Street, London SW1

The aim of the Centre for Policy Studiesis to develop and promote policies thatprovide freedom and encouragementfor individuals to pursue the aspirationsthey have for themselves and theirfamilies, within the security andobligations of a stable and law-abidingnation. The views expressed in ourpublications are, however, the soleresponsibility of the authors.Contributions are chosen for their valuein informing public debate and shouldnot be taken as representing a corporateview of the CPS or of its Directors. TheCPS values its independence and doesnot carry on activities with the intentionof affecting public support for anyregistered political party or forcandidates at election, or to influencevoters in a referendum.

Direct Democracy is a group of 38Conservative MPs, MEPs, MSPs andactivists dedicated to the principles oflocalism and the devolution of power.The Localist Papers are an examinationof how these principles might apply tospecific fields of policy. They are notmanifestoes, and not all our supportersendorse them in full. Rather, theyexplore some possible ways in whichpower could be shifted from thebureaucracy of the central state to localcommunities and individual citizens.

Direct democracymembersAdam Afriyie MPRichard Benyon MPRoger BirdMartin Callanan MEPDouglas Carswell MPPaul CarterGreg Clark MPStephen Crabb MPPhilip Dunne MPMurdo Fraser MSPDavid Gauke MPRobert Goodwill MPMichael Gove MPAndrew GriffithRobert HalfonStephen Hammond MPDaniel Hannan MEPMark Harper MPChris Heaton-Harris MEPNick Herbert MPAdam Holloway MPEd HowkerJeremy Hunt MPStewart Jackson MPSyed Kamall MEPScott KellyDanny KrugerKwasi KwartengAli MirajBrian MonteithBrooks Newmark MPJesse NormanPriti PatelMike Penning MPMark RecklessHenry SmithJames SprouleTheresa Villiers MP

Contents

1 Summary 1

2 Introduction 2

3 The rise of judicial activism 3

4 The internationalisation of law 6

5 Crime and punishment 10

6 Power to the people 14

“Rights-based judicial review taken to itsextreme becomes an anti-democratic power,wielded by courts to alter the fundamentalcharacter of a nation’s constitution withoutsignificant popular participation or even publicawareness. Judicial supremacy, in other words,is overtaking constitutional supremacy.”

Christopher Manfredi

“To the liberalism they profess, I prefer theliberties we enjoy; to the Rights of Man, therights of Englishmen.”

Benjamin Disraeli

“Liberties are not given, they are taken.”

Aldous Huxley

The Localist Papers

Send for the Sheriff1 Summary

The framing and execution of the law hasbecome remote from the people who liveunder it. Judges, police chiefs and,increasingly, international accords lay downthe application of criminal justice, often insuch a way as to frustrate the decisions ofelected representatives.

This paper proposes a radicaldecentralisation and democratisation ofjustice. It suggests passing powers fromglobal human rights quangoes and fromjudges to elected national parliamentarians,and to elected local Sheriffs.

International treaties should come beforeParliament for annual readoption, lapsingif they fail to secure a majority.

Senior judges should be appointedfollowing open parliamentary hearings.

The deployment of police resources, theprioritisation of offences and the controlof budgets should be the responsibility ofSheriffs, elected on a county or city basis.

Sheriffs should also take over the functionsof the Crown Prosecution Service,acquiring the right to set local sentencingguidelines (although not to interfere inindividual cases).

Parliamentary supremacy over foreign lawcodes and domestic courts should beguaranteed in a Reserve Powers Act .

2 The Localist Papers: Send for the Sheriff

2 IntroductionCriminal justice represents the supremepower that a government exercises over thecitizen. A state may be defined as a territorywhose inhabitants are bound by a commonset of laws. Who, though, is to make thoselaws?

The attempts to answer that question are thechapters that make up the history of moderndemocracy. Over the past three centuries,European societies have, by and large,adopted the idea that laws ought to befashioned by representatives of the people;that law-makers, in other words, should beaccountable, not upwards to ecclesiastical ormonarchical powers, but downwards to thepeople expected to live under their rules.

This observation may seem obvious. But, inrecent years, there has been a trend awayfrom the supremacy of elected legislatures.Laws are increasingly made and enforced byorgans of the state that are not accountableto the rest of the populace: the judiciary,autonomous government agencies and, notleast, the police.

Elected governments also find themselvesconstrained by a growing body ofinternational law. At home, the decisions ofelected ministers are frequently overturnedby judicial review. Laws, both internationaland domestic, are stretched, as shall be seen,by activist courts, which interpret them in away that their framers could not possiblyhave envisaged.

As the interpretation of laws has begun to driftaway from the orbit of elected politics, sohas their enforcement. In their prioritisation ofoffences and their deployment of resources,the police often make decisions that impactfar more tangibly on the lives of local peoplethan do the statutes passed by theirparliamentarians. Yet the police, too, arebeyond any direct democratic control.

Both judges and chief constables sometimestalk with startling frankness of their “duty”

to rise above popular prejudice. Yes, saysenior judges (when speaking extra-judicially),voters may well want murderers to be bangedup for life; but it is up to us to ensure thatvote-grabbing Home Secretaries do notpander to tabloid campaigns. Yes, sayambitious chief constables, the punters mightwant us to concentrate on protecting propertyand cracking down on street crime, but weneed to make sure that we are also defendingthe rights of minorities.

These motives are unexceptionable. Thetrouble is that the officials concerned are notsubjected to any democratic oversight. HighCourt judges are effectively unsackable: theycan be removed only by a joint address byboth Houses of Parliament. Chief Constables,although answerable to the Home Secretary,are not accountable to their localcommunities in any meaningful sense. Theonly voice that locally elected representativeshave is as a minority on their Police Authority– a minority that is then further subdividedamong the different parties.

However far judges drift from public opinionwhen it comes to, say, sentencing policy;however far police chiefs do so when itcomes to, say, speed cameras, there is nomechanism to bring them back into line. Weare, in short, reverting to the pre-modernconcept that law-makers should beaccountable to the Crown, to their ownconsciences or to God – not to the peopleaffected by their decisions.

This paper sets out to drag justice and homeaffairs back into the orbital pull of publicopinion. There will always be a separation ofpowers; there will always be a measure ofdiscretion for local officials. But with only aslight recalibration, the balance can be tiltedfrom the executive and judicial branches ofgovernment back to the elected legislature.We can, in short, help to restore the principleof representative government that wasBritain’s greatest contribution to thehappiness of mankind.

The Localist Papers: Send for the Sheriff 3

3 The rise of judicialactivismJudicial activism – that is, the tendency ofjudges to rule on the basis of what they thinkthe law ought to say, rather than what it says– is not new. On the contrary, it can hardlyfail to exist, in some measure, in any legalsystem.

In 1717, in a sermon preached before hisking, Bishop Hoadly of Winchesterobserved: “Whoever hath an absoluteauthority to interpret any written or spokenlaws, it is he who is truly the lawgiver, andnot the person who first wrote or spakethem.” This is true by definition.

Of course, the border between flexibility ininterpretation and judicial activism isdisputed. Most laws allow a degree ofdiscretion to the courts, correctly recognisingthat there may otherwise be unintendedconsequences. Where there are ambiguitiesor grey areas, judges quite properly applytheir common sense.

The problem arises when, in pursuit of whatthey see as a just settlement, judgesdeliberately set aside what the statute says.They do so, no doubt, from the highest ofmotives, seeking to uphold the liberal andhumane values of Western society. And therehas been a huge growth in the volume of lawsgenerally, and bad laws in particular. But todisregard the will of Parliament creates agreater wrong than bad law.

What constitutes a breach of the border? Atwhat point does a judge’s sense of dutyviolate the proper relationship betweenlegislature and judiciary? When, in short, dojudges become, in Bishop Hoadly’s phrase,lawgivers?

Consider a handful of recent cases where aministerial decision has been struck down bythe courts. They serve to indicate how farthat border has shifted, how much legislativeterritory has been annexed by the judiciary.

“So draconian that they must be heldultra vires”In 1996, Michael Howard MP, as HomeSecretary, addressed the problem of illicitentrants to the UK who, often after residing inthe country for several years, suddenly claimedto be victims of political persecution whenfound by the authorities and threatened withdeportation. The Social Security (Persons fromAbroad) Miscellaneous AmendmentsRegulations (1996) required asylum seekers tosubmit their claims as soon as reasonablypracticable after arrival in the UK. If they didnot do so, but submitted applications onlywhen contesting their repatriation, they wouldforfeit their entitlement to income support andhousing benefit.

The law was immediately challenged by theJoint Council for the Welfare of Immigrantson grounds that it constituted a breach offundamental human rights.1 Mr Howard hadgrounds to be confident: the claimantsconcerned were not refugees, and thereforewere not covered by any of the conventionshabitually cited by the courts to overrule him.And, indeed, Simon Brown LJ, in making hisruling acknowledged the problem, although hedid not allow it to detain him:

“True, no obligation arises under article 24of the 1951 convention until asylumseekers are recognised as refugees. Butthat is not to say that up to that point theirfundamental needs can be properlyignored. I do not accept that they can.”

On what grounds, then, could he strike downa measure that so obviously made himuncomfortable? Why, the very fact that therules were too harsh:

“For the purposes of this appeal, however,it suffices to say that I, for my part, regardthe 1996 regulations now in force as souncompromisingly draconian in effect thatthey must indeed be held ultra vires”.

1 R v Secretary of State for Social Security, ex parte Joint Council

for the Welfare of Immigrants; R v Secretary of State for SocialSecurity ex parte B, 1996.


This seems a remarkable ground on which tooverturn Parliament. The judge may havebeen right that the rules went too far: he iscertainly as entitled as anyone else to anopinion. But, feeling as he did, the correctprocedure would have been to leave theBench, stand for election, persuade amajority of his countrymen to support himand amend the rules.

“Until this court decided otherwise”Then again, why go to all that trouble whenyou can simply change the law from theBench? Consider, as an example,Mohammed Fayed’s demand for anexplanation when his application for Britishcitizenship was turned down.2

The case did not involve Mr Fayed’s bid fornaturalisation, which had previously beenrefused, along with his brother’s. Again, theHome Secretary had every reason to believethat the law was on his side. Britishnationality is not an automatic entitlement,but a privilege to be bestowed inexceptionally meritorious cases. There is noautomatic assumption that it will be granted,so it would be strange indeed to oblige theHome Secretary to explain his reasons whenhe chose to withhold it.

This is not simply an interpretation of the law:it is spelt out in the most unequivocal terms

2 R v Secretary of State for the Home Department, ex parte

Fayed and another, 1996.

by the pertinent statute, the 1981 BritishNationality Act, which states: “The HomeSecretary’s decision shall not be subject toreview in or challenge by any court whatever”.

This sounds pretty final and, indeed, LordWoolf, in delivering his judgment, acceptedthat “the Home Secretary was not obliged togive reasons for refusing an application forBritish citizenship”. He then went on,however, to argue that the Home Secretaryought to behave fairly and that, in hisopinion, this meant giving the applicantsufficient information to makerepresentations. He rounded off his judgmentwith a statement that ought to alarm anyonewho believes in the separation of powers:

“This decision does not involve anycriticism of the Secretary of State or hisdepartment. Until this court decided otherwise,it was perfectly reasonable to take adifferent view.” [emphasis added].

Lord Woolf, significantly, has argued extra-judicially that judges have not only the rightbut the obligation to strike down “bad” laws.Who, though, is to decide what constitutes abad law? We all have our assumptions andprejudices, judges just as much as politicians.The difference is that, if the rest of usdisagree with what the politicians havedecided, we can remove them.

Other examplesAgain and again, courts have overturned thewill of Parliament, as set out in the plainestpossible language, on the basis of a basis of amore or less arbitrary interpretation of whatconstitutes “fairness”. The phenomenon is atwork in every corner of the judiciary. In 2005,Martin Mears, the first person to be directlyelected as President of the Law Society,published a devastating critique of thestructural bias against husbands and fathers inthe Family Courts.3

3 M Mears, Institutional Injustice: the Family Courts at work,

Civitas, 2005.

“Lord Woolf has argued that judgeshave not only the right but theobligation to strike down “bad”laws. Who, though, is to decidewhat constitutes a bad law?”


The most high profile cases, however, usuallyturn on human rights, the status of minoritiesand immigration. It is here that jurists seem tofeel the strongest obligation to take a standagainst what they see as the unconscionablepopulism of elected politicians.

In 1997, for example, an illegal immigrantoverturned his deportation order on thegrounds that he would not receive the samemedical treatment in his home country as wasavailable in the UK. The court cited ArticleThree of the European Convention onHuman Rights, which reads: “No one shall besubjected to torture or to inhuman ordegrading treatment or punishment.” It seemsfair to say that such an interpretation wouldnot have been in the minds of those whodrafted the Convention.

In 2002, another illegal entrant overturnedthe suspension of her social securitypayments on grounds that she had not beenformally notified that her asylum applicationhad been rejected (she was able to maintainthis situation by repeatedly failing to attendthe interview).

In 2004, the Law Lords ruled that thegovernment had no right to intern terrorsuspects in a “three-walled prison” inBelmarsh (so called because the detaineeswere foreign nationals, and were free toreturn to their countries of origin). Shortlybefore the Tube bombings, Lord Hoffmandeclared that the threat to the life of ournation came, not from terrorism, “but fromlaws such as these”.

Throughout these years, lower-profiledeportation orders were routinely overturned,despite the best efforts of successiveministers. Four Home Secretaries struggled torepatriate the Afghan hijackers who arrived inBritain by diverting a flight to Stansted. Eachremoval order was quashed by the courts,despite the crime the hijackers committed incoming, and despite the fact that Britain hadexpended a good deal of blood and treasureridding Afghanistan of the Taliban regimefrom which they claimed to be fleeing.

Indeed, to find a converse example fromrecent years – an example, that is, of thecourts stepping in to order a deportation – wehave to look at the 1998 Law Lords judgmenton Augusto Pinochet. General Pinochet hadbeen detained in Britain on a Spanish warrantin connection with charges relating to humanrights abuses in Chile. (The erosion ofterritorial jurisdiction, and the growingreadiness of states to try offences allegedlycommitted elsewhere, is a phenomenonconsidered later.)

Whatever the rights and wrongs of thewarrant, it seemed clear that GeneralPinochet, as a head of state at the time of thealleged offences, was covered by the doctrineof sovereign immunity. That doctrine is notonly affirmed by international convention; itis also written into British statute, as LordBingham noted when ordering GeneralPinochet’s release.

Lord Bingham’s judgment was, however,overruled by the Law Lords, by a vote ofthree to two, because (according to LordsSteyn and Hoffman) sovereign immunity didnot bestow protection from charges relatingto human rights abuses, since these did notrelate to the proper functions of a head ofstate. Again, it is hard to avoid the suspicionthat the judges were acting according to whatthey felt the law ought to have said ratherthan what it said. Lord Hoffman, inparticular, was later in trouble for failing todeclare his links to Amnesty International,which had long campaigned to bring GeneralPinochet to trial.

“Shortly before the Tubebombings, Lord Hoffman declaredthat the threat to the life of ournation came, not from terrorism,“but from laws such as these”.”


“A genteel coup d’état”Two features are apparent. First, the skewingof the plain wording of the law always seemsto happen in the same political direction.Second, creative interpretation has beenenormously exacerbated by the growth of abody of international human rights law.

Robert Bork, whose nomination to the USSupreme Court was blocked by the Senate in1987, has studied the ballooning ofinternational jurisprudence since the early1990s, and concluded that it amounts to asustained attempt to impose on states fromabove laws and values that would never havepassed through their national parliaments. Ashe has observed:4

“What judges have wrought is a coupd’état, slow-moving and genteel, but acoup d’état nonetheless.”

His book is a study of judicial activism inthree states: the US, Canada and Israel. Butthe British reader is left feeling that thephenomenon is far more advanced in theUK than in any of the countries cited byJudge Bork.

The outrage provoked whenever a HomeSecretary rules that a high profile murdererought not to be eligible for parole is familiar.Politicians, chorus a line-up of retired judges,ought not to interfere in the judicial process.Yet nothing was said when, in a blatantinterference in the judicial process, theHome Secretary ordered that dozens ofconvicted terrorists be released early fromtheir sentences under the terms of the 1998Belfast Agreement.

Similarly, the attempt by Parliament to setminimum tariffs for certain offences isinevitably decried by the courts as amonstrous assault on judicial independenceand a threat to the separation of powers. Yetthe setting by Parliament of maximum tariffs

4 R Bork, Coercing Virtue: The Worldwide Rule of Judges,

AEI, 2006.

seems to raise no constitutional questionswhatever.

The phenomenon can be seen at internationallevel, too. Writs are now routinely served, notonly against dictators such as Pinochet, butagainst Ariel Sharon, Donald Rumsfeld andother controversial conservatives. Oddly, noone has tried to indict Yasser Arafat, FidelCastro or Robert Mugabe.

4 The internationalisationof lawThe internationalisation of criminal justicehas been one of the main drivers of judicialactivism within states. When judges can findno domestic statute to justify the rulings theywould like to make, they reach instead for theEuropean Convention or one of many UNaccords.

The notion of international law is not new. Ithas existed in something like its present formsince the end of the Second World War. Priorto that, the phrase “international law”referred simply to the mediation of relationsamong states, not to their domesticbehaviour. William Blackstone definedoffences against international law as theviolation of safe conduct passes, themistreatment of ambassadors and piracy.

The foundation of the United Nations andthe Nuremberg trials substantially widenedthe definition of international jurisdiction.But the real revolution has come since, andlargely as a consequence of, the end of theCold War. This revolution has fundamentallyaltered the relationship between nationallegislatures and their judiciaries. As HenryKissinger observed in 2001:5

5 H. Kissinger, “The Pitfalls of Universal Jurisdiction:

risking judicial tyranny, Foreign Affairs, July/August,2001.


“In less than a decade, an unprecedentedconcept has emerged to submitinternational politics to judicialprocedures. It has spread withextraordinary speed and has not beensubject to systematic debate, partlybecause of the intimidating passion of itsadvocates… The danger is that it is beingpushed to extremes which risksubstituting the tyranny of judges for thatof governments; historically, thedictatorship of the virtuous has often ledto inquisitions and even witch-hunts.”

Dr Kissinger is right. There has been a hugegrowth in international criminal law since theend of the Cold War. The process started in1990, when President George Bush Seniorproclaimed “a new world order” on 11September 1990. What he meant was thatUnited Nations Security Council Resolutionscould be enforced by means of military force,since the East-West division in Europe andthe hostility between the US and the USSRhad been overcome and the deadlock in theSecurity Council lifted. The United Nationswould henceforth be able to call on itsmembers to fight wars on its behalf, therebygiving international law a coercive qualitywhich it had never had before.

The phrase, “new world order,” did notoriginate with the Americans, however. Ithad been reintroduced into politicaldiscourse by the outgoing Soviet president,Mikhail Gorbachev, who rekindled the oldTrotskyite dream of world government bycalling for global governance and aunification of the world economy. Soon, theleft-wing and globalist origins of the “newworld order” project became clear:institutions proliferated at international level,transferring ever more power away fromordinary people into obscure andunaccountable international institutions.

The change was put well by a prosecutor atthe Yugoslav War Crimes tribunal, LouiseArbour, who said in 1999:

“We have passed from an era of co-operation between states into an era inwhich states can be constrained.”

The sentiment may be noble but itimmediately prompts the question: “Who isto check the powers of the person doing theconstraining?”

Prior to the proclamation of the “new worldorder”, international law consisted essentiallyof treaties between states. States were freeagents which concluded contracts betweenone another. Occasionally, they created largeinstitutions like the United Nations to overseethe terms of their agreements, andoccasionally the terms of the treaties werebased on appeals to universal values like theConventions on Genocide or Torture. Butnone of these treaties gave rise to systems ofcoercive law comparable to the national lawof a state, enforced by the police and thecourts. Any penalties imposed for treatyviolations were accepted voluntarily by thestates which had signed them.

Moreover, to the extent that internationaltreaties created obligations, those obligationsconcerned only states, not individuals. TheGenocide and Torture Conventions, forinstance, require national bodies to pursuepersons suspected of these crimes.

The European UnionThe exception to this general rule was theEuropean Union. The EU differs from alltreaty organisations in that its law penetrates

“Since 1990, institutions haveproliferated at international level,transferring ever more power awayfrom ordinary people into obscureand unaccountable internationalinstitutions.”


into the fabric of national life by imposingobligations on individuals. This is why theEU’s power is so awesome. Once the newworld order was proclaimed, however, theEU model was copied by other internationalbodies, and soon a host of internationalorganisations had cropped up which claimedthe right to regulate the most intimate detailsof people’s lives from on high.

The main vehicle for this internationalisationof law has been the doctrine of “universalhuman rights”. In the name of statements ofdesirable general principles, internationalorganisations have been created which claimthe right to interpret and even to enforcethose principles according to how they see fit.People often react favourably when they hearthat a new body has been created to protecthuman rights. What they perhaps do notrealise is that ordinary people do not get anynew rights as a result. Instead, it is the peopleworking in the new institution who get theright to say what ordinary people’s rights are.

The EU has been trying to gain control over“human rights” for years. The Europeanheads of state and government signed theCharter for Fundamental Rights at the Nicesummit in 2000. For the time being it has nolegal force. It would have become legallybinding if the European Constitution hadbeen adopted, since the Charter formed anintegral part of it, but the Constitution wasrejected in referendums in France and theNetherlands in 2005. In spite of this, inMarch, the EU created an Agency forFundamental Rights anyway, based inVienna. This is an example of how the EUputs in place institutions even when it hasbeen explicitly denied the legal right to do soby voters.

The new Agency has only an advisory role forthe time being. But its remit is huge: theCharter of Fundamental Rights, on which theAgency’s so-called “mandate” is based,contains rules on everything – on the right tolife, on liberty, on the right to a fair trial and onthe right to a family. There are rules on dataprotection, consumer protection,

environmental protection, freedom of thought,freedom of religion. There is “the freedom ofthe arts” and “the right to education”. Asylumpolicy, multiculturalism, social security, healthcare, the right to vote –the EU has a policy onall these issues. Once the Constitution and theCharter are adopted, as they no doubt will be,EU judges and officials will have the right toissue rulings saying what our rights are in theseareas. There is even a “right to goodadministration” – which is pretty rich, comingfrom Brussels.

In addition to this, in February 2007, theEuropean Commission put forward aproposal which would allow Brussels to sendpeople to prison for polluting theenvironment. No doubt pollution is a badthing, but should the power of imprisonmentbe granted to the same organisation which for50 years has run the corrupt and wastefulCommon Agricultural Policy?

Other supranational courtsThe EU is only one international body whichclaims the right to make and enforce laws.The Council of Europe, a pan-Europeanorganisation which includes Russia, Ukraineand other former Soviet republics, is home tothe European Court of Human Rights(ECHR) in Strasbourg. Although separatefrom the EU, this organisation has becomethe de facto Supreme Court for the whole ofEurope. People with a grievance can pursuecases against their own national courts andnational legislatures and obtain rulings fromthe ECHR made by judges who have nothingto do with this country; who do not have tobear the consequences of their own decisions;and who, in some cases, worked for thejudiciary under Communism.

The very existence of international courts likethe ECHR violates the principle of territorialjurisdiction. According to this ancientprinciple, on which the rule of law is based, therulings of judges are themselves embedded inthe overall institutions of a state. They aregoverned by carefully drafted laws, and thenational legislature and local authorities


monitor the effect of these laws on society. Soif a law gives rise to a judicial ruling whoseeffects are deemed unnecessarily expensive tosociety and its taxpayers, or detrimental in anyother way, then the law can be changed.However, once international courts andinternational conventions become involved,this key link between national policy, the law-making process and law-enforcement isbroken. When ruling on asylum applications,for instance, judges in this country are nowobliged to take into account the UnitedNations Convention on Refugees and theEuropean Convention on Human Rights. Theabuses of our generous asylum system are adirect consequence of the alienation ofnational law-making power to internationalbodies.

Similarly, after the end of the Cold War, thepreviously moribund Conference on Securityand Co-operation in Europe was revived,strengthened and re-named as theOrganisation for Security and Co-operation inEurope (OSCE). The OSCE has become thevehicle for a decade and a half ofunaccountable interference in the democraticprocess, especially in Eastern European states.Its rulings are now discredited. For instance, itapplauded the grossly unfair 2004 presidentialelections in Georgia. The OSCE has alsopicked on countries for alleged abuses ofhuman rights when it has been politicallyexpedient to do so, and turned a blind eye toreal abuses when it has been inconvenient tomention them. So for instance the liberal andfree-market Czech Republic (whose PrimeMinister at the time was the resolutelyEurosceptic Václav Klaus) was repeatedlyattacked during the 1990s for its supposedunfriendliness to its gypsy population, whilecountries which unfailingly toe the EU line,such as Latvia or Estonia, are hailed asmodels even though they have erected warmemorials to the Nazi SS, and even thoughtheir policy towards their substantial ethnicRussian minority is a disgrace.

The 1990s also saw the birth of the doctrineof military interventionism. Like the doctrine

of universal human rights on which it isbased, humanitarian interventionism is adoctrine with superficial appeal but whichunfortunately is wide open to abuse.Interdependence was shown to be a grimreality when intervention over Kosovo in1999 caused huge numbers of Albanianasylum seekers to arrive in this country. Onthe backs of the doctrine of interventionism,two international criminal tribunals werecreated, one for Yugoslavia and the other forRwanda. Now a third court, the InternationalCriminal Court (ICC), has been created. Itwill have the power to prosecute nationalleaders, including national leaders in thiscountry, and this is a power which willinevitably be politically abused. It is preciselyfor this reason that the Americans havesensibly not signed the ICC Charter.

Many people think it is right and proper thatunscrupulous heads of state should end up inthe dock if they have committed crimes. Butwho is to prosecute them? If the argument isthat leaders should be democraticallyaccountable for their acts, then it is theirnational courts which should bring any suchprosecutions. There is nothing democraticabout taking away the rights of states toprosecute their own leaders and investing themin unaccountable international tribunals.

The problem, in all such cases is the problemexpressed by the oldest question in politicalphilosophy, Quis custodiet ipsos custodies? If theprinciple of democratic accountability is to

“The OSCE has also picked oncountries for alleged abuses ofhuman rights when it has beenpolitically expedient to do so, andturned a blind eye to real abuseswhen it has been inconvenient tomention them.”


mean anything, then the link must be re-established between the people who makelaws, on the one hand, and the people whoare governed by them and who pay for theirimplementation, on the other. In otherwords, the internationalisation of law shouldcease. Law-making and law-enforcementpowers should be returned to national courtsand national authorities.

5 Crime and punishmentThe failure of local authorities – above allthe police – to deliver the desired outcomesis, suggest the opinion polls, of great concernto voters today. People feel that police forceshave become decoupled from their concerns:that their paperwork, their obsession withhow to treat minorities, and their removalfrom the streets have divorced them fromthe communities in which they were oncerooted.

It is another aspect of the same problem:lawgivers are remote from those who mustlive by their laws. The solution, too, is the

same: to make decisions as closely as possibleto the people they affect. Just as we shouldseek to repatriate power from internationalhuman rights lawyers, so we should seek todisperse it at home to accountable office-holders.

The political discussion about crime is often anumbingly boring argument about statistics.Overall crime recorded by the police seems tohave risen (so the Opposition uses thisstatistic) while crime reported by the publicseems, until very recently, to have fallen (sothe Government relies on that). As far as wecan tell, certain classes of crime have fallen,notably burglary and car crime, while othershave risen, notably violence and antisocialbehaviour.

The truth is that “overall crime” (rather likeoverall GDP) is an irrelevance. What mattersto people is local crime (or their own wealth).And here, the national trends are worrying.For while everyone must welcome the fall inacquisitive crime against homes and cars (afall, by the way, which has been achievedmore because of private investment in alarmtechnology rather than because of betterpolicing), it is violence and antisocialbehaviour which bothers people most.

Conventional policing – based on evidenceand detection – is unable to address theproblem of antisocial behaviour. This sort ofcrime is not, like acquisitive crime, a rational,if immoral, professional endeavour, whichcan be reduced by rational professional actionby the authorities to alter the balance of riskand reward. The prevalence of low-leveldisorder and random violence is an inchoate,angry, irrational expression of social collapse.

This collapse is happening both “internally”and “externally”. The “internal” collapse isthe decline of healthy families andcommunities, the informal social networkswhich sustain decent behaviour amongindividuals. The “external” collapse is thedecline in the effective enforcement of thelaw by the agency responsible for it: thepolice. The two are linked, of course: families

“Conventional policing is unable toaddress the problem of antisocialbehaviour. This sort of crime is not,a rational, if immoral, professionalendeavour, which can be reducedby rational professional action bythe authorities to alter the balanceof risk and reward. Rather, theprevalence of low-level disorder andrandom violence is an inchoate,angry, irrational expression ofsocial collapse.”


and communities suffer when the policedon’t do their job, and the police’s job ismade harder when families and communitiesare not strong.

This essential link was once the foundingprinciple of the police force. “Police, at alltimes, should maintain a relationship withthe public that gives reality to the historictradition that the police are the public andthe public are the police”, said Sir RobertPeel in his statement of principles withwhich he established the Metropolitan PoliceForce in 1829.

Today, there is increasing lip-service paid tothis principle – and decreasing actualimplementation of it. “Working together fora safer London”, proclaims the Met’s newand expensive logo at Scotland Yard. Yetbehind the building’s blank facade sitthousands of police officers doing preciselythe opposite of “working together” with thecommunity. They are busy devising newprocesses to “connect” with the public, butwhich in fact alienate them further.

There is no more illustrative example of themodern culture of British policing than theproposal in the Macpherson report – sinceimplemented by this Government – thatofficers should fill in a form every time theystop a member of the public in the street.The pointless bureaucracy involved in thisrequirement is bad enough: it takes up sevenminutes of an officer’s time per personstopped, and thereby discourages him or herfrom engaging with the public or stoppingsuspicious individuals. More fundamental,though, is the assumption behind therequirement: that the police’s relations withthe community need to be monitored fromabove; and that every contact between apolice officer and a citizen must be mediatedby an official process, so that the police’srelations with society can be assessed on thebasis of statistical returns. The form alreadycontains a question on the individual’s racialgroup, and it has recently been suggestedthat the individual’s religion might be noteddown too. Thus does an initiative intended

to improve the police’s relations with theLondon public – particularly ethnic minorities– end up in an intrusive and deeply illiberalattempt by the state to monitor the behaviourof its agents and peer into the personalcircumstances of British citizens. The policeand the public have never been more remotefrom each other.

The centralisation of powerThe attempt to ensure that the police and thepublic “work together” has been enactedfrom precisely the wrong direction: fromabove. Local Strategic Partnerships, Crimeand Disorder Reduction Partnerships andCommunity Safety Plans are just a few of theinitiatives designed in Whitehall, implementedlocally, to “connect” the police with other“stakeholders” in the community.

Police Authorities are supposed to representthe community in the supervision of thepolice. They are one of the three pillars in the“tripartite” structure implemented in 1964,the others being the Home Secretary and theChief Constable. Over the years, andespecially since 1997, the Police Authority hasbecome by far the weakest of the pillars.Chief Constables are accountable in practicenot to the representatives of the communitybut to the Home Office in Whitehall, whichworks to ensure – through targets, centralfunding streams, and bureaucratic audit andinspections – that local forces implementnational policies designed to bring downnational crime figures. The Home Office hasimposed de facto national control of policeforces.

If one reason for the impotence of PoliceAuthorities is the encroaching power of theHome Office, another is their own lack ofmoral authority. Police Authorities areappointed bodies, comprising local councillors(on a party proportional basis), Home Office-appointed “independent” members, and localmagistrates. They are anonymous quangoesmade up of local worthies who, albeit with thebest of intentions, generally see it as their jobto support “their” Chief Constable against


attacks on his or her performance. It is widelyunderstood that one of the key roles of aChief Constable is to “manage” the localPolice Authority; that is, to ensure that nocomplaint or trouble comes from that quarter.

The 1964 tripartite system has thereforefailed to create effective local accountability.Chief Constables obey the Home Office, notthe community. Few people know PoliceAuthorities exist – even fewer know who sitson them; they are no longer effective (if theyever were) in establishing local policingpriorities. People are right to feel alienatedfrom their local police forces.

A brief look at the other aspects of the criminaljustice system reveals the problem of remoteaccountability and poor performance. There isclear evidence that the Crown ProsecutionService (CPS) is proving ineffective. 7% ofcases each year are abandoned “in error”. By2000, the CPS was bringing 65% fewerprosecutions against offenders aged 14 to 18than had been prosecuted in 1984, the yearbefore the CPS was established, despite asignificant increase in juvenile crime in theintervening years. Whereas the CPS wasestablished to prevent the dishonesty withevidence which sometimes occurred when thepolice were the prosecutors, today the oppositeproblem is occurring. There is a failure ofcommunication, and a culture of blame-passing, between the police and prosecutors,with the result that too many criminals fallbetween the cracks and victims are deniedjustice.

As for sentencing, judges and magistrateshave responded in recent years to the clearpublic demand for stiffer sentences bysending criminals to prison earlier in theircriminal career and for longer stretches. Thisis welcome, for it has significantly reducedpotential crime through the incapacitation ofcriminals. And yet if prison works at thismost fundamental purpose, it is failing in itssecondary, but vital, role of rehabilitation.Over half of all prisoners are reconvictedwithin two years of their release, including75% of young offenders under 21 and nearly

90% of those under 18. Prisons are managedby the new National Offender ManagementService (NOMS), comprising the formerPrison and Probation Services, under a chiefexecutive accountable to the Home Secretary.This new system has yet to be tested.However, it is again an upwardly-accountablesystem. It is likely that NOMS will be a top-heavy, top-down structure which will furtherestrange local communities from the publicservants supposed to be protecting themagainst crime.

What voters thinkIt is worth briefly noting public attitudes tocrime and punishment. In 2004 theConservative Party conducted a series offocus groups on this subject. It was clear that,in the words of the report, “Crime is theoverriding priority… In response to thequestion ‘if there is one thing you couldchange, what would it be?’, the instant andoverwhelming response in all groups was‘crime’. [There was a] total consensus thatcrime has got worse, noticeably deterioratedin the last five years”. What worried peoplemost, naturally enough, was antisocialbehaviour, the “yob culture”, the sense offeeling “intimidated by gangs of kids with norespect and no discipline”.

The groups thought that “the police areuseless – but they try their best… they can’tdo anything about crime”. Asked to choosethree words to describe the police, repliesincluded “unreliable”, “a joke”, “inept”,“ineffective”, “not in control”. 95% agreedthat “the police are doing their best but forone reason or another are failing”. Theywondered “why do the police have so muchpaperwork? Why is there so much politicalcorrectness stopping the police from doingtheir job?”

The groups’ proposed remedy for theproblem was simple: local accountability.There was “strong support for ‘have your sayabout how your area is policed’ – but only ata very local level”.


Send for the SheriffBritain could certainly do with “morepolice”. New York’s celebrated fall in crimein the 1990s – down 60% in ten years – wasachieved by a considerably increased policeforce. Yet the real key to success in NewYork was not police numbers. It was changeto the structures and systems of policing toget the police on the streets and proactivelyworking to reduce crime.

Police Authorities should be scrapped.Instead a simple, effective and transparentsystem of local accountability should beintroduced: directly elected individualSheriffs. Initially, there would be one foreach of the 43 police forces in England andWales; in time, however, it would make senseto bring these forces in line with localgovernment boundaries, thus giving voters aclearer idea of where responsibility lay. ChiefConstables would retain operationalindependence but they would answer to theSheriff for their performance – and theCommissioner would answer to the public.

Where there was a directly elected Mayorwhose jurisdiction was congruent with apolice force area (currently only London) theMayor would exercise the functions of theSheriff.

Sheriffs would appoint and dismiss ChiefConstables. They would set their own targetsfor the force, make their own Policing Plans,and, crucially, control their own budgets.Each Sheriff would be allocated his or herfunding as a block allocation, rather than as aseries of micro-managed grants for specificpurposes, and would be accountable to localvoters for how effectively he or she spentthe money in the fight against crime.

Restoring public confidence in the criminaljustice system is not simply a question ofmaking those responsible for pursuingcriminals through the streets (i.e. the police)more democratically accountable. It is alsoabout making those responsible for pursuingsuspects through the courts answerable for

their effectiveness in securing convictions, andmaking those responsible for supervisingpunishment accountable for their success inprotecting the public by reducing re-offending.

The CPS should be reconstituted as a set oflocal Crown Prosecution Offices, answerableto the local Sheriff for their success insecuring convictions. As in the US, theSheriff should not be entitled to order aprosecution, but may order one to bedropped. In order to avoid miscarriages ofjustice the police and the public prosecutionauthority should remain distinct and separateentities. However, making them accountableto the same authority would ensure there isgreater scope for co-ordination between thetwo institutions at the sharp end in the fightagainst crime.

The Sheriff should also be responsible forsupervising sentenced criminals. NOMS iswelcome insofar as it unites the two arms of thepenal system. However, the accountability tothe Home Secretary and the regional structure(there will be ten Regional OffenderManagement Services or “ROMS”) should beabolished.

Rather than amalgamating upwards, weshould amalgamate downwards, and abolishthe regional structure of the new system.Rather than ROMS, there should be LOMS:Local Offender Management Servicesaccountable to the elected Sheriffs. Thereshould be a local purchaser-provider split.Each LOMS – acting on the instructions of

“The Crown Prosecution Serviceshould be reconstituted as a set oflocal Crown Prosecution Offices,answerable to the local Sheriff fortheir success in securingconvictions.”


the Sheriff – should have responsibility forpurchasing space in prisons and other“disposals” (probation and communitypunishment capacity), with regard to localwishes. Criminals should serve theirsentences – whether in prison or not – underthe authority (i.e. as the “guest”) of theSheriff in the area they committed theircrime.

Finally, the Sheriff should have the power toset local sentencing guidelines. Whilegranting an elected official the right tointervene in individual cases would plainly beat odds with the separation of powers, thereis no reason why local voters should nothave some say over which categories of crimeto prioritise. This may well lead to disparities:shop-lifting might lead to incarceration inKent, but not in Surrey. So be it, if that iswhat the electorates of those counties decide.The Sheriff’s discretionary power overprosecutions will lead to similarincongruities. Different parts of the countrymight end up with different guidelines onhow far a homeowner could go in attackingintruders. It should be noted, however, thatdiscrepancies already exist today: some ChiefConstables, for example, decline to treat thepossession of cannabis as an offence. Thedifference is that Chief Constables are notanswerable to anybody.

These specific proposals, however, matterless than the philosophy that underlies them.People feel, and with reason, that the legalsystem no longer functions as the majoritywould like. John Locke’s original compacthas been broken: having contracted out ourright to personal defence and enforcement,we find that the state no longer fulfils its partof the bargain. The legal system gives theappearance of reflecting the prejudices of anunrepresentative clique of experts inWhitehall, on the Bench and, not least,abroad.

The surest way to address that concern is tobring justice and policing under localdemocratic control.

6 Power to the peopleThree apparently separate problems in thispaper have been identified: judicial activism,the internationalisation of law, and theremoteness of police from their communities.In fact, of course, all three are aspects of thesame problem. Power has shifted, at all levels,away from people and their electedrepresentatives and towards unaccountablefunctionaries.

The remedy follows naturally from thediagnosis. Decisions should be made asclosely as possible to the people they affect.Where practicable, this means the individualcitizen. Failing that, local decision-makingshould be preferred to national decision-making; and only where absolutely necessaryshould we bestow powers on internationalsecretariats. In any event, at all levels, theremust be mechanisms to make decision-makers accountable.

At international level, this leads to theconclusion that Britain should withdraw fromsuch codes and conventions as are being usedto distort the exercise of democraticgovernment. The ECHR, for example, isbeing interpreted in ways that could not havebeen foreseen by its drafters to frustrateparliamentary decisions. A number of UNconventions, too, are being creativelyinterpreted to force on Britain a domesticpolicy that would never be passed at theballot box.

Rather than drawing up a list of accords forabrogation, a new general principle should beintroduced: that Parliament ought to ratifyinternational conventions only on atemporary and contingent basis. Foreignaccords should come before Parliament forannual readoption, allowing MPs to decline tosupport them if they are seen to be havingeffects not intended at the time of theirratification.

Within Britain, too, there should be a dispersalof jurisdiction. There is no definitive solutionto expansionist courts; but the problem can be


mitigated by the decentralisation of power.American conservatives have been wrestlingwith the problem of judicial activism forlonger, and with more angst, than we have –even though the US, by any definition, hasless of a problem than the UK. The onlyremedy they have found is to allow differentstates to apply the law differently, inaccordance with the wishes of their ownpopulations. This reduces the likelihood ofunintended consequences, narrows the gapbetween judges and people and makesisolated instances of judicial activism moreobvious, precisely because they do not set aprecedent for the entire Union.

Britain is not the US, of course, and theAmerican system cannot simply be graftedon to our institutions. In particular, it is hardto reconcile the US practice of electingmembers of the judiciary with Britain’stradition of parliamentary supremacy. Tworeforms would, however, serve to bolster theproper status of our legislature. First,Parliament should adopt a Reserve PowersAct, guaranteeing its supremacy in a numberof defined areas. This would serve as adefence, not only against domestic judicialactivism, but against the encroachment offoreign legal systems.

Second, senior judges should be appointedfollowing open parliamentary hearings. Theprevious system of judicial appointments –where power was concentrated in the handsof the Lord Chancellor – was indefensible intheory but, perhaps for that reason, moderatein practice. Precisely because they could seehow anomalous their powers were, successiveLord Chancellors generally did their best toexercise them fairly and impartially. The samecannot be said of the successor system,whereby appointments are made by a quango.Judges, as noted above, have been draggedirreversibly into making political decisions.Their personal assumptions and prejudices aretherefore a mater of legitimate public interest.

Finally, and as part of the overall localistdispensation outlined in this series of papers,a measure of control over criminal justice

should pass to locally elected officials. Countypolice forces should be placed under locallyelected Sheriffs – a policy toward which theConservative Party may be moving slowly. Avital component of localism, however, is togive elected Sheriffs the right to apply localsentencing guidelines (although not tointerfere in specific cases). This alone wouldgo a long way towards soothing the public’ssense that their legal system is biased infavour of rogues and chancers who knowhow to exploit human rights rules.

The specific policy recommendations madehere matter less, however, than thephilosophy that underpins them. People feel,with reason, that their legal apparatus hasbecome divorced form their concerns. JohnLocke’s original compact has been broken.The citizen has contracted out his rights ofself-defence and vengeance to the state; butthe state is failing to deliver its side of thebargain.

The way to address that concern is byensuring a closer approximation of thecriminal justice system to public opinion. Andthe way to achieve such approximation isthrough the devolution of power and thedirect election of decision-makers. In mattersof justice and policing, as in most fields ofgovernment activity, the experts have hadtheir day. It is time to trust the people.

.

thelocalistpapers4. Send for the Sheriff

The framing and execution of the law has become remote from the people who liveunder it. Judges, police chiefs and, increasingly, international accords lay down theapplication of criminal justice, often in such a way as to frustrate the decisions ofelected representatives.

This paper proposes a radical decentralisation and democratisation of justice. Itsuggests passing powers from global human rights quangoes to elected nationalparliamentarians, and from judges and to elected local Sheriffs.

International treaties should come before Parliament for annual readoption,lapsing if they fail to secure a majority. Senior judges should be appointed following open parliamentary hearings. The deployment of police resources, the prioritisation of offences and thecontrol of budgets should be the responsibility of Sheriffs, elected on a countyor city basis. Sheriffs should also take over the functions of the Crown Prosecution Service,acquiring the right to set local sentencing guidelines (although not to interfere inindividual cases). Parliamentary supremacy over foreign law codes and domestic courts should beguaranteed in a Reserve Powers Act .

Centre for Policy Sudies57 Tufton StreetLondon SW1P 3QL

www.cps.org.ukwww.direct-democracy.co.uk

direct-democracy.co.uk

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