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Euro-judges turn lawmakers
Topic Started: Feb 1 2008, 02:21 PM (120 Views)
ds9074
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Admiral
Quote:
 
The European Court of Justice has just taken another stride away from a strict interpretation of the law.

In a preliminary judgment, it has widened the definition of "discrimination on the ground of disability" to include the employment of able-bodied people who are obliged to look after disabled dependents. Firms, in other words, may be obliged to offer extra time off to carers.

I’m not arguing for or against such a law. A case can be made for each side. But such arguments should be heard before elected national parliamentarians. Instead, Euro-judges are ignoring what the law says in favour of what they think the law ought to say.

The treaties prohibit discrimination on a number of grounds: race, nationality, sexual orientation, disability, blah blah. But they do not recognise the concept of "discrimination by association". The court’s decision, if upheld, would constitute a legislative, rather than a judicial, act.

This, of course, is how the EU often proceeds, extending its powers as much through judicial activism as through new treaties. Consider, as an example, the issue of sex discrimination.

The Treaty of Rome contains one short and apparently simple sentence on the subject: “Men and women shall be given equal pay for equal work”. But, in a series of contentious rulings, the ECJ has progressively stretched the meaning of these words.

First, it decided that "equal pay" covered such issues as holiday entitlements and retirement ages. Then it pronounced that "equal work" meant "work of equivalent value". (How the devil is an employer meant to determine "equal value"? Does he have to factor in, say, the availability of suitably qualified applicants?) Then it asserted that the clause also covered discrimination against same-sex partners who were denied the perks of spouses.

Again, a case can be made for each of these changes. But they ought to be determined by legislators who are accountable to the rest of us. What we have seen instead is the imposition of a sweeping reform programme imposed without debate, without ballots and without public consent.

Elected assemblies have been circumvented by human rights codes, interpreted by international judges. Democracy has been vitiated. No wonder the EU is so keen on the whole business.

http://blogs.telegraph.co.uk/politics/dani.../eurojudges.htm

Its not just the US Supreme Court that does this, whose actions I have often heard complaint about here. The European Court of Justice is up to the same tricks of legislating from the bench.

Just the other day there was a ruling by the UK Law Lords which supposedly 'overturned 300 years of legal precident'. I was left thinking on whose authority? As far as I was aware the judges are there to intepret and apply the law to specfic situations, not make new laws.

Trouble is if the highest courts in the land are acting outside their powers who can you appeal to?

It seems to mean that these days the politicians are more concerned about the verdict of the courts than the verdict of the people.

Perhaps someone should someday say enough is enough we are not going to enforce or comply with rulings where judges exceed their powers.
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RTW
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ds9074
Feb 1 2008, 12:21 PM
Trouble is if the highest courts in the land are acting outside their powers who can you appeal to?

:headscratch:

Smith and Wesson? :bat:

:bolt:


I'm not sure if I'm relieved or saddened to know that it's not just American judges suffering from a God-complex.

As stated in the article, people aren't complaining because they disagree with the verdict, but because the judges are usurping authority.

:grouphug: <- empathy

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Data's Cat's Sister
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Commodore
I disagree with the article. As I see it the judges have not acted outside their powers.

The judges have not 'legislated' but merely interpreted the law where it is unclear which is a function of the court.

Nor have they circumvented the people. It was the people's elected representatives who agreed to making us part of the system in the first place. Therefore the judges who operate in it are operating with our consent.

Overturning or interpreting a law does not equal creating a new piece of legislation. Judges cannot initiate legislation, cannot create new legislation and can only rule on cases that are brought to them. Therefor it is simply false to imply that they have somehow maliciously chosen to 'change' the law.

Also human rights codes are not violating and circumventing national legislatures because it was exactly those national legislatures that chose to sign up to them in the first place and can if they wish choose to remove themselves from the system.

Whilst I do not believe that the court has acted unreasonalby I agree however that there is widespread unease about the EU and that this needs to be addressed on many levels.
The unease about this issue simply highlights the urgent need to address the balance of powers within the EU by strengthening the European Parliament and also by applying the principal of subsidiarity and getting citizens more involved.
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Admiralbill_gomec
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My comment here is that the US Supreme Court does not legislate from the bench, it interprets cases brought before them through the filter of the US Constitution. In other words, they are supposed to base a ruling on whether the case is constitutional. Our justices do NOT legislate (in other words, I won't wake up and hear that the Supreme Court has decided that it is no longer legal to own an automobile).

This is why we have a JUDICIAL branch, a LEGISLATIVE branch, and an EXECUTIVE branch, and utilize the SEPARATION OF POWERS model.
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ds9074
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Nor have they circumvented the people. It was the people's elected representatives who agreed to making us part of the system in the first place. Therefore the judges who operate in it are operating with our consent.

A very diluted consent.

Quote:
 
Also human rights codes are not violating and circumventing national legislatures because it was exactly those national legislatures that chose to sign up to them in the first place and can if they wish choose to remove themselves from the system

You cant I believe do that short of withdrawing from the EU.

Quote:
 
Overturning or interpreting a law does not equal creating a new piece of legislation. Judges cannot initiate legislation, cannot create new legislation and can only rule on cases that are brought to them. Therefor it is simply false to imply that they have somehow maliciously chosen to 'change' the law

No but what they can do is interpet the law in such a loose way that they can in effect 'change' the law.

Quote:
 
The unease about this issue simply highlights the urgent need to address the balance of powers within the EU by strengthening the European Parliament and also by applying the principal of subsidiarity and getting citizens more involved.

I disagree with giving more power to the European Parliament. It is a disfunctional organisation as it has no proper political parties with no real roots back to the people.

I do agree with subsidiarity - right down to the local level.

The EU doesnt have the trust of a large share of its population. In many countries it has been years (if ever) since the people had a direct say on their countries membership. In many countries all the main parties are in favour of membership so there is no realistic democratic choice. Also when there are referendums on the treaties yes votes are considered binding for all time whereas no votes are treated as temporary setbacks to the project, the EU elite rolls its eyes at the ignorance of the people in saying no to their grand vision.

At any rate I personally would be happier with us out of the EU, with us negotiating trading and other common treaties as per the Swiss.

Quote:
 
My comment here is that the US Supreme Court does not legislate from the bench, it interprets cases brought before them through the filter of the US Constitution. In other words, they are supposed to base a ruling on whether the case is constitutional. Our justices do NOT legislate (in other words, I won't wake up and hear that the Supreme Court has decided that it is no longer legal to own an automobile).

This is why we have a JUDICIAL branch, a LEGISLATIVE branch, and an EXECUTIVE branch, and utilize the SEPARATION OF POWERS

That may be the principle but as I said earlier it seems to be courts are stretching the law, and in the US case the Constitution, to their own ends to a point where it does become virtually legislative.
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Data's Cat's Sister
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True but what I'm saying in esscence is that it is no use complaining if someone beats you over the head with a stick if you give them a stick and say 'hey, here is the top of my head - think you can hit that?'. The court has done nothing that it isn't entitled to do. Interpreting the law in this context is both technically and legally not changing the law.

Our elected representatives have chosen this system for us. Therefore we have to lump it or chose new representatives who will force change if we want change.

You describe our consent as 'diluted consent'. However that is how our political system works. The nature of our system allows our representatives to make huge decisions of this nature without anything more then a vote a minimum of every five years. Until we have a system which either encourages the use of referenda on certain issues or empowers the internal mechansisms of our legislature to be more executive and less watchdog (eg committees) we will continue to offer our consent in this 'diluted' way.

I agree with you on the European Parliament in that it is not functional enough as it stands but I feel that radical change could vastly improve this situation. To have the balance that ABG describes above it is essential to have a properly active legislature. Its also a much easier and less painful option then withdrawel from the EU.




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Dandandat
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Time to put something here
Data's Cat's Sister
Feb 1 2008, 05:57 PM
The judges have not 'legislated' but merely interpreted the law where it is unclear which is a function of the court.

If your system is anything like our system. This statement could not be any further from correct.

Judges have no function to interpret the law where it is unclear. In the event that a situation occurs that is unclear or not addressed by current laws, Judges must put that matter back on the legislators. They can go as far as demanding that legislators create a new law or edit an old one. They are not primate to fill in the gaps or make anything more clear. Such an action is them changing the law and that is a legislative function.

There ruling in such cases should be nothing more then to state that a ruling can not be made at this time and wont be made until the legislators address the issue.


Quote:
 
Overturning or interpreting a law does not equal creating a new piece of legislation. Judges cannot initiate legislation, cannot create new legislation and can only rule on cases that are brought to them. Therefor it is simply false to imply that they have somehow maliciously chosen to 'change' the law.


Interpreting a law in such a was as to change the intent of said law is in affect creating a new peace of legislation. The old legislation has been changed and a new president set.
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ds9074
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Data's Cat's Sister
Feb 1 2008, 11:30 PM
True but what I'm saying in esscence is that it is no use complaining if someone beats you over the head with a stick if you give them a stick and say 'hey, here is the top of my head - think you can hit that?'. The court has done nothing that it isn't entitled to do. Interpreting the law in this context is both technically and legally not changing the law.

Our elected representatives have chosen this system for us. Therefore we have to lump it or chose new representatives who will force change if we want change.

You describe our consent as 'diluted consent'. However that is how our political system works. The nature of our system allows our representatives to make huge decisions of this nature without anything more then a vote a minimum of every five years. Until we have a system which either encourages the use of referenda on certain issues or empowers the internal mechansisms of our legislature to be more executive and less watchdog (eg committees) we will continue to offer our consent in this 'diluted' way.

I agree with you on the European Parliament in that it is not functional enough as it stands but I feel that radical change could vastly improve this situation. To have the balance that ABG describes above it is essential to have a properly active legislature. Its also a much easier and less painful option then withdrawel from the EU.

Trouble is that the only choices in the UK if you want out of the EU are either far to the right or far to the left. The mainstream parties all, currently at least, in favour of membership. There is therefore little actual chance of effecting change.

Not only that. Just say a British government was elected with a direct manifesto promise to curb the power of the European Court. They would have get that past 27 other governments. If they could not, which is likely, the only option then is leave the EU or accept the status quo.

I use the term 'diluted consent' because if you trace the line of accountability for that decision back to me it is extremely distant. So I got to vote 3 years ago to send someone to Parliament. They then didnt vote for a government that would either be able to renegotiate the judges powers or withdraw us from the EU. That then gave an implict consent for the system to continue. That system appointed those judges. Thats dilution of consent a homeopathist would be proud of ;)
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