Monday, November 14, 2011

Britain's judges continue to defy democracy

Two cases from the past week highlight a worrying extension of judicial power

The courts were flexing their political muscles again last week – as they seem to every week. First, a High Court judge ruled that Sefton Council could not legally freeze the fees it pays private companies to look after old people needing care. Then, on Friday, the same court ruled that the Isle of Wight could not cut its social care budget for the disabled.

I happen to agree that it is bad that the amount devoted to paying for the elderly, or the disabled, should fall behind demand – but what business is it of the High Court to enforce its view? No doubt those who will benefit, and their relatives, will be delighted. But since the money will have to be saved somewhere, other people will end up having their services cut, and will be very unhappy. What will the High Court do then?

It’s the job of local authorities to balance competing needs and to come to a conclusion as to which should be sacrificed – just as Parliament must perform that task on a national scale. The matter of how resources gathered from taxpayers are distributed is, and ought to be, a decision for the elected and accountable representatives of the people. If we don’t like what those representatives do, we can change them. That is what democracy means.

Judges are not accountable to anyone for their actions. Nor should they be: their independence depends on their immunity from the pressures that sway politicians. But as I have argued before, this requires that judges should not take it upon themselves to correct what they think are bad decisions by elected officials – because when they do, they subvert the democratic process.

In an important and revealing lecture last week, Jonathan Sumption QC explained why judges keep trespassing into areas which ought to be, in all but the most exceptional circumstances, the exclusive preserve of elected politicians. Essentially, it is because they do not recognise that this is what they are doing. Judges, Sumption suggests, do not set out to substitute their judgment for that of politicians. But because they do not think seriously about the importance of respecting the boundaries between the judiciary and the other branches of government, they end up discovering bad legal reasons for quashing policies they don’t like.

The passing of the Human Rights Act has made the situation worse – but it didn’t create the problem. Indeed, Sumption gives some powerful examples of judges substituting their own views for those of Parliament. In a very telling quote, Lord Steyn, the former Law Lord, justifies judicial activism on the grounds of the deficiencies inherent in the British electoral system.

Sumption comments that he “cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections”. He certainly is not: many judges would probably feel uncomfortable about it too, if they thought about it. The trouble, as Sumption suggests, is that they don’t.

Sumption is a famously formidable barrister, currently acting for Roman Abramovich in his battle with Boris Berezovsky. He’s also been appointed to the Supreme Court, a post he will take up as soon as that case concludes. Will he be able to persuade his fellow justices to share his sensible view of the limits of judicial power?

He may already have one ally in Lord Brown, who in a dissent that I reported on early last month, expressed alarm at the willingness of his colleagues to take what were essentially political decisions. Sumption may, however, find it difficult to persuade the other justices, none of whom is exactly celebrated for their ability to recognise that they are wrong about anything of significance.

Still, if anyone can persuade the majority of the 12-man court to think more carefully about trespassing into the political realm, it is Sumption. I dearly hope he succeeds. Because if he fails, the politicisation of the judiciary will only proceed further.


A deep breath for free speech -- and a blow against government propaganda

by Jeff Jacoby

THE FOOD AND DRUG ADMINISTRATION announced last year that harsh new labels, large and graphic, would soon have to cover half of the front and back of all cigarette packages and at least 20 percent of the space in all tobacco advertising. Included in each label would be a blunt warning -- "Smoking can kill you," for example, or "Tobacco smoke can harm your children" -- plus a hard-hitting color image. Among the grisly pictures approved by the Food and Drug Administration: ravaged lungs; a corpse with an autopsy scar down its chest; a man smoking through a tracheotomy hole in his throat; a diseased mouth with discolored teeth and cancerous lesions; and a woman sobbing with grief. Displayed on every image as well would be the toll-free number of the FDA's smoking quit line, 1-800-QUIT-NOW.

The explicit labels, which Congress authorized in the Family Smoking Prevention and Tobacco Control Act of 2009, were supposed to be in place by next September. Last week, US District Judge Richard Leon wisely said no.

Most of the new warning labels approved by the Food and Drug Administration were quite graphic, and intended to provoke an emotional reaction.

The FDA's gruesome new labels are not designed to provide consumers with useful information about the hazards of smoking. After 45 years of mandatory Surgeon General's warnings, every non-comatose American knows perfectly well that cigarettes are a noxious health risk. That's why the share of Americans who are occasional smokers has fallen to an all-time low of 19.3 percent, or less than 1 in 5 -- a far cry from the more than 42 percent who were smokers in 1965. No one, not even Big Tobacco, disputes Washington's right to require cigarette makers to disclose pertinent facts about their product's dangers. Those disclosures, it's clear, have been effective.

So why the shrill new labels? Not to inform Americans, but to indoctrinate them. To "grab people by the lapels," as NPR put it last summer, "and be the visual equivalent of someone yelling: 'Stop smoking!'"

Indeed, the FDA released a video describing the required new labels as "bold and powerful messages," and FDA Commissioner Margaret Hamburg told reporters that with the new warnings in place, "every single pack of cigarettes in our country will in effect become a mini-billboard." At a White House press briefing, Health and Human Services Secretary Kathleen Sebelius said that the new regulations would amount to "rebranding" cigarette packs, transforming them to convey the message that "smoking is gross."

But "smoking is gross" is opinion, not fact. Millions of Americans -- including me -- may share that opinion, but under the Constitution the government has no power to compel anyone to express it. Requiring vendors to post accurate information, the First Amendment allows; forcing them to promote the FDA's anti-tobacco ideology, it forbids.

"The line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry," acknowledged Judge Leon. But "here -- where these emotion-provoking images are coupled with text [exhorting] consumers to call the phone number '1-800-QUIT' -- the line seems quite clear."

In a memorable 1977 decision, the US Supreme Court ruled in favor of New Hampshire resident George Maynard, who had covered up the state motto "Live Free or Die" on his automobile license plates. Under the Constitution, the court held in Wooley v. Maynard, he could not be punished for doing so. Americans cannot be made to "use their private property as a 'mobile billboard' for the State's ideological message."

So in gloating that her agency's strident new warnings were intended to convert every pack of cigarettes into an anti-smoking "mini-billboard," the FDA commissioner was -- presumably inadvertently -- articulating precisely the goal that Wooley disallows.

Time and again the courts have made clear that compelled speech is as repugnant to the Bill of Rights as prohibited speech. Reasonable people can disagree over the point at which prudent consumer or public-health protections turn into patronizing nanny-state officiousness. They can disagree over whether urging Americans not to smoke -- or not to eat junk food or watch violent movies or drink too much wine -- is a wise use of government influence, time, and money.

But even the wisest policy must be constitutional. The FDA can rent billboards from sea to shining sea and fill them with the ghastliest smoking-is-gross messages it can dream up. What it cannot do is order tobacco companies to use their own products -- their own lawful products -- to advertise the government's anti-smoking agenda. If the First Amendment means anything, surely it means that.


Our society is hooked on harm reduction

We should approach the use and abuse of alcohol and drugs as a moral question, not as a clinical or legal matter

I start from the point that it’s much more useful to regard the whole debate around drug use from a moral rather than a medical, legal or criminal perspective, which is the dominant framework within which drugs tend to be discussed. ‘Moral’ in the sense of the question of what sort of standards of behaviour we hold ourselves to as individuals and what sort of standards we wish to prevail in the society in which we live and to determine our relations with other people.

Now, we start with the recognition that the use of intoxicating substances is a universal feature of human society. It’s surrounded with all sorts of rituals, it’s very pleasurable for individuals, and it plays a very important part in all sorts of social life.

And we also recognise that the resort to intoxicating substances in response to the vicissitudes of life is a permanent and ineradicable temptation and a part of the human condition. As Thoreau said, most people lead lives of quiet desperation and the resort to intoxicating substances or altered states of consciousness in response to that experience of life is a constant presence to the human condition.

The problem arises when occasional or episodic use of these substances becomes habitual, customary, compulsive. Then it can become a problem. And, of course, as a society we have existed with this problem in relation to alcohol, which is the predominant substance for creating an altered state of consciousness and intoxication, over hundreds or thousands of years.

The spectrum from recreational to problematic use is something that every individual has got to learn to work out in their own personal relationship to alcohol, because of the way in which it permeates our society. Everybody in this room has had to do that, and has negotiated that, because you can’t live in this society without doing so, and indeed that experience is extending to other sorts of substances which are becoming increasingly familiar.

We only have to look at alcohol to see that problem: alcohol is, on the one hand, a substance which creates great pleasure. It exists in an immense variety of forms. People get tremendous enjoyment from drinking it, making it, sharing it, consuming it at parties; it plays an important part in our lives. We also know the tremendously destructive effect that people’s relationship with alcohol can have and has had. Everybody in this room knows from their personal experience how people’s individual relationship with alcohol can be so damaging and destructive in their own lives, the lives of their families and the lives of people in wider society.

There’s a problem for our society to deal with. The fact that it’s subject to all sorts of political controversies at different times doesn’t detract from the fact that there’s always been a problem there. That problem is in some sense compounded and extended into the whole area of recreational drugs, however they’re defined. Obviously, the problems that those substances create are greater for individuals, and indeed for societies, for whom there is a lack of direction and purpose.

The most striking example of that is the destructive effect of the relationship of alcohol on indigenous or aboriginal societies in various parts of the world – societies which are in a particular state of demoralisation or crisis have a particularly difficult problem with alcohol. It’s a particular problem in our society for people who are poor, demoralised, unemployed, for the immature and the disaffected. These substances are a particular problem for people who are in that state of life. And therefore it’s quite understandable that people should resort to these sorts of substances, and it can become a habitual, customary, addictive part of their life, where the whole process of drug consumption takes over many constructive activities in relation to their personal or social lives.

In response to that, my medical colleague Theodore Dalrymple, one of the most perceptive of medical writers on this subject, takes what you might you say is an extreme view, which is to say that if society is going to stigmatise any activities, these ought to be stigmatised, indeed the addict ought to be stigmatised, because this behaviour is self-centred, self-destructive, self-indulgent and, indeed, socially destructive. I wouldn’t advocate the stigmatising of individuals and the social discrimination of individuals, but it seems to me that it’s an entirely sensible position for society as a whole to take a view of these activities as something that should be regarded with an element of social disapproval or disapprobation. We need to strive for a cultural climate in which these activities are not encouraged, rather than what seems to me to exist at the moment: today, these activities are indulged and in some sense rewarded.

Celebrity culture celebrates this, but it also happens on a smaller scale. It is interesting that a large population now exists that can claim disability benefits on the basis of being addicted to alcohol or drugs. There are 100,000 people in this country in receipt of long-term benefits with a diagnosis of either alcohol or drug dependency. And that’s doubled in the past 10 years.

That’s a very interesting social trend that has been created in our society. This activity is in a sense supported and indulged by the rest of society. One of the striking things – and there’s been some discussion in the medical world about this recently – is of the problem of aging addicts. I’ve got a couple of patients myself who have graduated into old people’s homes, along with their zimmer frames and bottles of methadone. And what that communicates is the extent to which the admission into the category of addiction is a life sentence. It’s a self-fulfilling prophecy which lasts a lifetime – people are condemned to a life in that respect.

So I think we need to move away from that sort of support for the culture of drugs, from indulging it in those ways, and we should not celebrate this way of dealing with the experience of modern society as being in some way interesting or creative. As the slogan goes, ‘A drunk is a drunk, every heroin addict is a philosopher’. Pete Doherty is a cult hero of our era and that seems to me a morbid aspect of contemporary society that we have these sorts of folk heroes, people who celebrate this condition or the idea of creativity being enhanced by these substances - which is one of the great illusions that is well discussed by Theodore Dalrymple, going back to the romantic poets and de Quincy and Coleridge and that whole tradition. I haven’t got the space here to go into that now, but what a myth and a delusion that is.

I’m not saying that any of these activities should be banned or clamped down on. Instead, I’m talking about the sort of cultural climate we ought to seek to foster around them, and that seems to me to be consistent with this wider notion of bringing the morality of issues into focus.

The alternatives are to regard drug use as a medical or as a legislative issue. However, the consumption of drugs, it seems to me, cannot be construed as a medical problem; this idea that it’s a disease is a fatuous notion. The problem is not about a medical condition, but that people have not learned how to live their lives in a real and meaningful way. And that is a problem for which doctors have nothing to offer. I can tell you as I’ve worked in this area for 30 years. A doctor cannot tell you how to live your life, though many may be tempted to do so. The futility of this idea is eloquently confirmed by the complete ineffectiveness of medical treatments for drug use. But what I object to is not the fact that the treatments are useless, but how dehumanising they are.

Reducing the drug addict to a physiological system that can be blocked with some drug, detoxed by replacing one drug or another, or reducing the addict to some sort of automaton which will behave in a criminal way if the drug is not replaced with something else, is ultimately dehumanising. It construes the human being as something without any control or volition over their own behaviour, without any capacity to change their behaviour, without any control over how they live their lives. The paradox of this is the sort of warm glow of benevolence on the part of doctors and health professional who believe that they are being helpful in these relationships, when in fact they’re removing all humanity from the people that they’re treating.

The concept of harm reduction is very interesting in this regard; the idea that you have a state policy which reduces the harm associated with the activities that individuals undertake. That is an inherently infantilising concept: ‘We, the state, will take over from you the individual the judgement of what is safe for you to engage in.’ It takes responsibility away from you for determining your own behaviour. Nothing could be more reinforcing to irresponsible behaviour than the philosophy of harm reduction.

The usual alternative to the medical view of drug use is the legislative one. There’s much discussion of the decriminalisation of drugs which tends to be extremely simplistic. One of the issues about it is when people talk about decriminalisation what they usually mean is some change in the legislative framework, some different form of regulation rather than the current one. Anybody who wants to make out that it’s a simple problem doesn’t understand the complexity of it. And you only have to look at the history of alcohol to see that. Western societies have struggled with how to regulate alcohol for 200 years, manifestly unsuccessfully, and a triumph in that area doesn’t seem to be anywhere near coming around. It’s simple if you argue it from a basic principle - one that many people, including myself, hold dear – namely, Mill’s idea of non-interference in private behaviour. What the individual does is up to the individual and the state should not interfere in it. That is a very sound principle to which I strongly adhere. But you also can’t ignore the fact that there is a cost to be paid for that, which you can’t just entirely dismiss.

You can look at it entirely pragmatically and say, look, the harmful consequences of the war on drugs are even more than those caused by the drugs themselves. I think you can make a persuasive argument for that and people will be familiar with the discussion around that. But I would say, yes, there’s a case to be made there, but can you really be sure that the removal of all legislation would not create even bigger problems than we already have in relation to the flow and, in particular, the commodification of these drugs which are becoming increasingly widely available, and the promotion of them on the market? Would that indeed do less harm than the current regulation? Maybe, maybe not. It seems to me open to discussion.

On balance, many people, including my colleague Theodore Dalrymple, come down in favour of continuing the criminalisation of drugs in the current form. On balance I come down on the opposite position because it seems to me that the principle of individual autonomy, particularly in the current climate of more coercive and repressive state legislation, is a more important principle to stand by. The danger of the infantilisation of social policies in all areas and the dangers of intrusive social and public-health policies are greater than the dangers of drug use. Indeed, there’s a sort of soporific, stupefying effect of all those sorts of policies which is nearly as bad as methadone.

But more important than that discussion is a wider question. It’s not really a question about laws. It’s a question of the moral, cultural, social climate that we create around it, and I think that’s what we really need to tackle - the baleful effects of the drug culture and the drug-treatment culture. And we should make a start, I would say, by repealing the laws, closing the clinics, stopping the benefits. The take-home message from that is ‘take responsibility for your own actions’.


Nameless cab drivers?

Pandering to Muslims again. What if a passenger has a problem with a driver? A name is a lot easier to remember than a number

Photo IDs set to be introduced in Brisbane taxis will no longer include drivers' names, due to a fear passengers may verbally abuse cabbies over their foreign names. From November 30, cab drivers in Brisbane and the Gold Coast will be required to display authorised Queensland taxi driver display cards in their cabs. The cards will include a photo and driver identification number, but not a name.

The government printed ID cards with full names for the Toowoomba roll-out earlier this year, but reissued new licences without names due to privacy and cultural concerns. understands during the Toowoomba roll-out in June, some drivers with names such as Muhammad were the target of racial abuse and harassment from customers.

"The taxi council made representations on behalf of their members to remove drivers' names from the Authorised Queensland Taxi Driver Display Card," a statement from Transport Minister Annastacia Palaszczuk read. "This decision was made for privacy and cultural reasons. This is consistent with other states."

The cultural issue of what name was used on the card was also a stumbling block for the program, with drivers unhappy their preferred common name, or anglicised name, was not displayed.

Taxi Council of Queensland chief executive Blair Davies, who flagged privacy concerns with the identification program with last year, said there had been an issue with what names were being transferred across from government records to the licences.

"The average person born in Australia has a first name and surname but depending on where you come from sometimes the first name is your family name, so it can get complicated, particularly in some cultures," he said.

"So we were seeing some quite strange results coming out on these cards. "They were typically using the first name and that can produce some quite inconsistent results. "But for some drivers their whole names were to be printed on the IDs."

Mr Davies said the IDs would provide an extra level of reassurance for passengers who would be able to match a driver with their photo, as well as use the identification number to report any issues.

But he indicated the current security system for cab drivers was better than those used in others states, with all Queensland drivers being required to enter a pin on dispatch to log on for their shift. Mr Davies said Queensland was the only state using this system.

The licence introduction is part of a raft of reforms introduced under the Queensland Taxi Strategic Plan, 2010-2015.

Ms Palaszczuk said the plan's implementation was progressing well, with the introduction of national training standards for taxi drivers improving customer service and passenger safety. "These standards raised the bar for taxi drivers across driving skills, geographical knowledge, customer service and safety issues," she said.



Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.

American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.

For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCH, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here or Email me (John Ray) here. For readers in China or for times when is playing up, there is a mirror of this site here.


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