I am not hostile to the common law, or to the inherent jurisdiction of the courts with regards to vulnerable adults, which forms part of the common law. For those unfamiliar, the bigger picture looks something like this. Judge-made law goes back a long way in time, and judges were deciding what the law was before the era of detailed legislation. The common law is the law emerging from judges’ caselaw, but in particular on subjects where legislation does not provide an answer. Some common law is old – thus murder, for example, is a common law offence. Other common law is newer, addressing lacunae that legislation does not.
The inherent jurisdiction specifically is the jurisdiction of the court to make decisions with regard to vulnerable adults. Before the Mental Capacity Act, this included adults who lacked capacity; since the Act, it has been held to continue in respect of those adults who have capacity.
Critics of the inherent jurisdiction tend to dislike what seems to be unfettered power in the hands of judges. A reason I am not hostile is that the principle of the supremacy of legislation and the power to legislate away the common law is quite clear. The inherent jurisdiction simply enables a judge to do justice where otherwise he or she would be required to permit an injustice, for want of legislation.
These statements are, of course, at a level of some abstraction. Continuing at that level, one further thing that I think matters is the question of checks and balances. The authority of legislation derives from its coming from the legislature, which have a democratic mandate. Frequently, Parliamentarians criticize any interference that they say lacks a democratic mandate. But just as there is a problem with judges having unchecked power, there is also a problem with legislators having unchecked power: democracy favours the interests of the franchised over the disenfranchised, the majority over the minority, the short term over the long term. Checks upon anyone having unfettered power matter.
But the subject of this blog is the inherent jurisdiction in Parker J’s hands. The immediate inspiration is Continue reading Abuse by the State: the inherent jurisdiction in Parker J’s hands