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Sunday, 27 November 2011

Can this Court sit in judgement on itself?

The Royal Court Building
The Royal Court duly convened to consider my representation on Friday. The representation was a very minor part of the incompatibility between the operation of elections in Jersey and the European Convention of Human Rights; it asked the simple question, "Can this Court sit in judgement on itself?"

The answer is obviously, no. I know it, you know it and the Court knows it.

However "he will win who knows when to fight and when not to fight" and the law officers decided that the preferable option to actually answering is to prevent me from asking the question at all, they therefore gave notice of the intention to seek to strike out the representation.  Perhaps they even read my blog and followed my advice.

That would have left a potential avenue through the usual legal processes for the case to eventually be heard in a Court of Appeal and thus in a manner that would be compliant with my Convention rights.

Instead I objected to the Constitution of the Court and withdrew my representation, fighting on a battleground (or in a Court) that is not of your choosing is one of those times when not to fight.

We'll see what happens, I am assured that my concerns have been added to the pot and will be considered as part of the overall review of election legislation which is under way following the Southern case. Maybe no further action will be necessary, maybe it will, we'll wait till the Attorney General gets back from holiday to find out.

There are usually better ways to achieve one's aims that having a stand up bare knuckle fist fight.

The experience has shown how the operation of modern Courts is failing to provide people with the appropriate protection of the Law. Like any civil service department, the Courts are run primarily for the benefit of the staff and then for the most frequent users of the service, the Advocates.

"To no man shall justice be sold" is one of the reforms of Magna Carta (which Jersey appropriated as the apocryphal 'Constitutions of King John') but unfortunately the modern legal profession enjoys such a high level of protectionism, that ultimately justice only comes at a price. From a free market perspective anyone should be allowed to represent anyone. The lack of competition in the industry of legal representation is the primary factor in the outrageously high fees.

How could the Courts work without lawyers? Well quite easily actually. Special thanks to Professor Andrew Le Sueur for pointing me in the right direction.

Firstly forming an argument is a fairly common skill, anyone who has been educated to degree level should be expected to be able to do so.

The Common Law, works with two simple rules: do what you say you are going to do (basis of contract law) and and it harm none do as you will (basis of criminal law) and the golden rule that no one should profit from wrongdoing. The rest is all previous decisions which have been made by Courts historically.

By comparison with what we have today, the process is far simpler, you go to court and plead your case to twelve of your peers against a person who has either caused you harm or not done what they said they were going to do and if, and only if, the twelve members of the jury unanimously agree with you then there is a restitution order made.

All Common Law Courts work by consent. If a party chooses not to abide by the decision of the Court then that person is considered 'outwith the law' or outlaw. An outlaw loses the protection of the law meaning that there is no sanction against anyone who does them harm.

There are movements throughout the Commonwealth that are seeking to 'reclaim the common law'. The British Constitution Group for example.

Jersey has it's own Common Law pioneer. You may recall that the wording of parking fines was re-written recently, well the previous link may help to explain why this occurred.

There is something in this I'm sure...