Vol. 34 No. 7 · 5 April 2012

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Judicial Politics

Stephen Sedley demonstrates the fallacies in the thesis Jonathan Sumption put forward in last year’s F.A. Mann Lecture, given in the wake of his elevation to the Supreme Court (LRB, 23 February). Sumption’s argument that the judiciary in recent times has overstepped the boundary between its legitimate judicial role and illegitimate political decision-making can be seen as an opening shot on the part of a new generation of judges who are critical of the previous generation’s activism in the field of public law and would prefer to see the judiciary confined to its orthodox conservative role. Indeed, reading between the lines, I detect a conservative – even a Conservative – ideology in tune with aspects of contemporary political thinking.

It is significant that Sumption chooses to invoke the experience of ‘the conservative 18th-century Englishmen’, the framers of the US Constitution, plumping in particular for James Madison, who was exercised about the need for ‘checks and balances’ and suspicious of democracy, in preference to the more radical Alexander Hamilton, who said in his famous essay on judicial review that ‘where the will of the legislature declared in its statutes stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former.’

So it’s no surprise that Sumption is critical of recent judicial decisions applying the European Convention on Human Rights. His statement that ‘many of these sub-principles and rules go well beyond what is required to vindicate the rights expressly conferred by the Convention’ chimes perfectly with sentiments expressed very recently by the prime minister and other politicos on the right, who advocate the ‘repatriation’ of human rights to the UK and, once repatriated, would limit their scope.

For those on the left, the exercise of judicial review, to which Sumption is inclined to pay lip-service (while acknowledging its necessity), has been seen as an invaluable corrective for the deficiencies of governmental policy-making, in particular in the ‘contentious’, as he calls them, areas he singles out in the lecture: namely, immigration, penal policy, security and policing, privacy and freedom of expression. For Sumption, ‘parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ But is it really adequate? Is it adequate, for instance, on issues in which the main political parties cosy up together and invoke ‘the national interest’, and the only available redress is judicial review? A good example is the BAe/al-Yamamah arms deal case, where the High Court ruled in 2008 that the Serious Fraud Office had acted unlawfully by discontinuing its investigation into alleged corruption contrary to the OECD Convention on Combating Bribery (the ruling was overturned by the House of Lords on appeal).

Implicit in Sumption’s political approach is what appears to be an unshakeable belief in the efficacy of our political system. This despite the fact that it frequently lacks majority support, that legislation is inadequately drafted, and political decision-making unimpressive. A glaring instance of the indispensable value of judicial oversight is the landmark Supreme Court decision in Kernott v. Jones in November 2011 (delivered just as Sumption was giving his lecture), concerned with determining the beneficial interests in a house acquired in joint names by an unmarried couple who intended it to be their family home. One of the judges, Lord Wilson, summed up the rationale behind the court’s decision: ‘In the light of the continued failure of Parliament to confer upon the courts limited redistributive powers in relation to the property of each party upon the breakdown of a non-marital relationship, I warmly applaud this development of the law of equity.’

Benedict Birnberg
London SE3

Star Quality

Colin Burrow notes that the use of the word ‘star’ to describe a ‘person of brilliant reputation or talents’ is a 19th-century affectation (LRB, 8 March). Achilles, the greatest of the Achaean heroes, is compared to the dog-star in an elaborate simile in Book 22 of the Iliad, suggesting that the 19th-century usage has classical roots. Although Achilles’ deadly effect on the Trojans is implied by this simile, it also encapsulates his brilliance and beauty on the battlefield and his exceptional talent for warfare. In fact, two further versions of the same simile, although in a more abbreviated form, occur in Books 5 and 11 of the epic, indicating that this astral comparison was already fairly commonplace in archaic Greek culture.

Sarah Harden
Trinity College, Oxford

Colin Burrow is of course correct to note that Sir Walter Ralegh, mentioned in the third verse of ‘I’m So Tired’, is ‘the only Elizabethan courtier to be immortalised in a Beatles song’. There is, however, an Elizabethan dramatist who plays a much more substantial role in the lyrics of another Beatles tune: the words of ‘Golden Slumbers’ on Abbey Road are almost verbatim those of Thomas Dekker’s ‘Cradle Song’ from 1599.

Benjamin Friedman
New York

Stay brutal

Owen Hatherley, according to Will Self, is ‘wedded to the inverted snobbery of describing almost everything he dislikes as “Basingstoke"’ (LRB, 8 March, 8 March). Most of Basingstoke’s domestic architecture does, it’s true, fall into the suburban house-and-garden category that Hatherley so despises. But one of the town’s landmarks is the 13-storey Oakridge Towers, a quite modest example of Hatherley’s beloved Brutalism, which was scheduled for demolition when Oakridge was ‘regenerated’ ten years ago but saved after a campaign by residents.

Mary Higgins

In Their Shadow

‘From now on it’s drones, baby, drones,’ says the US secretary of defense, Robert Gates, as quoted by Andrew Cockburn (LRB, 8 March). Where the US military goes, the Brits are inclined to follow. I have a letter from the minister of state for the armed forces, Nick Harvey, confirming that RAF drone pilots based in the US are working alongside their American counterparts at the controls of Reaper drones. The RAF Reaper sorties, he assures us, ‘operate in accordance with international humanitarian law (also known as the law of armed conflict)’. The US attorney general, Eric Holder, meanwhile tells us that ‘the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimised or avoided altogether.’

Drone pilots too say that the detachment and comfort of their operating stations make it easier for them to distinguish calmly between the bad guys and the good. But an Associated Press study of drone deaths in Pakistan suggests that nearly one in three of those killed are civilians, or at least non-terrorists. The AP reporters who visited the sites of ten drone attacks were ‘told by the villagers that of at least 194 people killed in the attacks, about 70 per cent – at least 138 – were militants. The remaining 56 were either civilians or tribal police.’ These figures were presented as a counter to much higher Pakistani estimates of civilian deaths, and were more or less in line with a broader based study by the Bureau of Investigative Journalism in London. US officials cast doubt on such evidence, while refusing to disclose their own, but in other surgical operations, a one in three failure rate might be considered unacceptable.

Greg Wilkinson

The Akwizgran Discrepancy

Reading Neal Ascherson’s account of Moresnet-neutre reminded me of another quirk of European geography (LRB, 22 March). The border between East and West Berlin followed the pre-existing municipal boundaries, but this line was quite irregular and when the Wall was built it cut a few corners. I remember seeing, in West Berlin in the mid-1980s, a collection of Gruftis and Autonomen – goths and anarchist punks – who had set up camp on a triangle of land about fifty yards on each side, hard up against the Wall, where they were playing very loud music and smoking spliffs without any interference from the West Berlin authorities. This was because the campers were on what was technically East German territory. I also saw some doors, with no handles on the Western side, set into the Wall where it ran alongside this triangle, and I was told, although I didn’t see it myself, that every so often the Volkspolizei would come through the doors, drag the Gruftis and Autonomen into the East, rough them up and throw them back out.

Nick Wray

It was about the Cold War

The reason Catch-22 worked is well understood by those of us – they include Thomas Powers – who lived through the years immediately following its publication (LRB, 8 March). Lifting our heads as we became young adults, and looking around, we were forcibly struck by the fact that the world was run by madmen. The 1960s wasn’t about sex, drugs and rock and roll, although they were there: it was about the Cold War. We thought it highly likely we would be blown off the planet, and that, somehow, it was up to us – children after all – to prevent it. We were the first global generation, and we found ourselves alone in that lunatic landscape; we clung to each other because there was no one else we could trust: a presentiment grimly fulfilled, it seemed, in the marches and the streets, and in the end at Kent State. We were also, incidentally, shipped off to fight before we turned twenty to be killed in Vietnam; and many of us did die, and many of us who lived paid the price all our lives. Catch-22 captured the central characteristic of that world: its inhuman, anti-human insanity. We tried to meet it head-on, and of course failed, and were left with wild satire as our only weapon against it, and a bitter, existential, ultimately impotent rejection of its appalling logic as our only stand. It may not have been much set against the millions who were dying, in Vietnam, in Cambodia, in Laos, in South Africa, but it was all we could come up with. That was Catch-22. It was an older voice, and set in a past that was another country, but we recognised it instantly as our own.

Geoffrey Wells
Robe, South Australia

It’s hard to be a bastard

I did not say, in my letter about the Rehoboth Basters, that I know ‘at first hand’ that the German anthropologist Eugen Fischer did not coin the name (Letters, 8 March). That editorial insertion implies that I am myself a Rehoboth Baster. I am not. However, I am related to the two men I mentioned in my letter, because we have a common ancestor, the picaresque Isacq d’Algué, baptised Johannes Augustinus Dreyer (1689-1759), who was the forebear of almost everyone named Dreyer in Southern Africa, and also of innumerable others, including both the apartheid era foreign minister Pik Botha and Jan Smuts. The Rehoboth Basters are only a fraction of the millions entitled to the name Baster. They are remarkable in that they take pride in it.

Peter Dreyer
Charlottesville, Virginia

Unseen since Raquel Welch

If Charles Glass’s reading of Samir Kassir’s Beirut is correct, his ‘biography of the city’ is indeed ‘unlikely to be surpassed’, beginning, as Glass tells us it does, ‘with the Palaeolithic habitation of six million years BC on the promontory later known as Beirut’ (LRB, 8 March). Not only does the book push back the beginning of the Palaeolithic era by some 3.4 million years, but does so with a degree of precision unseen in palaeontology since the 1966 Raquel Welch movie One Million Years BC.

Mat Snow
London SW12

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