Address On The Retirement Of
The Honourable Justice Handley AO
THE SUPREME COURT
OF NEW SOUTH WALES
BANCO COURT
SPIGELMAN CJ
AND THE JUDGES OF
THE SURPEME COURT
Friday 15 December 2006
FAREWELL CEREMONY FOR
THE HONOURABLE JUSTICE K R HANDLEY AO
UPON THE OCCASION OF HIS RETIREMENT AS A JUDGE
OF THE SUPREME COURT OF NEW SOUTH WALES
1 SPIGELMAN CJ: We gather here today to commemorate a significant landmark in the legal career of the Honourable Justice Kenneth Handley who is by force of statute required to retire as a fulltime judge of this court. Over a period of more than thirty years at the bar and seventeen years in this court your Honour has been one of the most accomplished all round lawyers it has ever been our privilege to know. You have been and remain the quintessential lawyer’s lawyer.
2 Your Honour’s encyclopaedic knowledge of the law is of such breadth as to inspire admiration by lawyers throughout Australia and in England. Perhaps your most notable characteristic, to which anyone who has seen you at work will attest, is your astonishing recall of the detail of cases and of the order of events in times past. This extends not only to the precise volume of the Commonwealth Law Reports, and often enough the very page, on which a principle or a telling phrase is to be found but also to the decisions of the higher courts of England extending to obscure volumes reporting Privy Counsel cases and Indian appeals of the late nineteenth century.
3 No-one who appeared in the Court of Appeal over the last seventeen years was in any doubt of the significance of the single volume with its single place mark of a report, not on anyone’s list of authorities, which your Honour strategically placed before you as the case commenced or which your Honour called for with precise reference during the course of a hearing.
4 The breadth and depth of your knowledge of the law is reflected in your articles in learned periodicals both here and abroad and in three books. As Justice Dyson Heydon said recently, when launching your latest book on Estoppel, for a sitting judge to have produced three volumes of such high scholarship “is an achievement which must be regarded as unique in the strictness sense”.
5 Your legal learning is, of course, also reflected in the judgments your Honour has delivered over the course of seventeen years, many of which will stand the test of time and which as a collective body of work will long remain a monument of your Honour’s term of office. Your judgments manifest your prodigious work ethic, your intensity of application to the task at hand, and your unerring eye for the point.
6 According to a computer search during your Honour’s term of office you have sat on more than one thousand five hundred published cases over ninety per year. A sample of these cases suggest that well over fifty per cent involve substantive judgments, that is many more than fifty fully reasoned judgments per year. All of the others however required your Honour’s detailed attention and received it. The author of the main judgment, as my personal experience attests, almost always benefited considerably from your Honour’s suggestions and references, not only, but not least, in errors of grammar and punctuation.
7 Your Honour has always been a strong team player, a quality much appreciated by your fellow judges.
8 There are too many judgments of your Honour’s to summarise on an occasion such as this. They are without exception of the highest order, succinct, to the point and expressed in clear elegant prose. That they are also lawyerly to a fault is not a criticism. That after all is the principal characteristic that an appellate court judgment ought display.
9 There is no area of the procedural or substantive of law to which your Honour did not contribute. You have written significant judgments on company law, equity, insurance, valuation, real property, tort, contracts, and the full range of statutory regimes with which this court is concerned including workers compensation, motor accidents, limitation of actions and, in recent years, building industry security of payments and the Civil Liability Act. Across the entire field of this court’s jurisdiction your Honour has manifested a reliable and sure judgment.
10 Your Honour’s contribution extended well beyond that of the judgments you wrote. In this Court your Honour served as chair of the Education Committee and as a member of the Policy and Planning Committee, making an important contribution to the quality of the knowledge of your fellow judges, and therefore to the quality of our work, and to the effective administration of the Court. You were always a source of wise counsel to me and I intend that to continue.
11 Consistently with the restraints upon all of us who adopt a judicial life, your Honour has made a major contribution to the community. Most notably as Chancellor of the Anglican Diocese of Sydney for twenty-three years and on the Council of your old school, Cranbrook, from 1974, since 1999 as President. To these tasks you brought the same admirable qualities that you also brought to the legal profession as a barrister and as a leader of the bar, notably as President of the New South Wales Bar Association, and as President of the Australian Bar Association and to your work as a judge.
12 I refer to your capacity for hard work, your conscientiousness, your strong sense of civic duty, your personal loyalty, generosity and trustworthiness. These qualities are all such that association with you in any endeavour is a pleasure. My only hesitation arises from the profound suspicion that must necessarily be held of a person who does not appear to have any enemies.
13 Your Honour’s strong sense of responsibility and loyalty has never been better displayed than in your long association, commencing in your youth, with Fiji. It is regrettable that today it is again topical to recall your Honour’s service as a member of the judiciary of Fiji after the last attempted coup.
14 You hold a commission on the final Court of Appeal of that nation, together with two other judges of this Court of Appeal. Furthermore, two recently retired judges of this court continue to hold commissions on the Court of Appeal of Fiji, being the intermediate appellate court of that nation, upon which you also served prior to your elevation to that Supreme Court.
15 In February 2001 your Honour sat as one of the judges of the Fiji Court of Appeal to determine whether the 1997 constitution of Fiji had been abrogated by the military appointed government that took over in May the previous year. Together with your fellow judges you arrived at a time of considerable tension in Fiji, personally protected by the army and special branch, amid a high level of security at the airport, at your hotel and in and around the court. This included snipers on the roof of the court building and a personal escort of two special branch officers when out walking, to whom was added a jeep full of soldiers when you went to church, to face the particular hazards of that expedition.
16 The court unanimously held that the Constitution remained in force as the supreme law of Fiji. The military installed government accepted your decision and resigned. The new President dissolved Parliament, called a general election, albeit reappointing the government on a caretaker basis. This was the most dramatic possible affirmation of the significance of the rule of law. It is a contribution you may be called upon to make again and, one trusts, to do so soon. I know from my own direct experience when I myself sat as a judge of the Supreme Court of Fiji, on a constitutional case of considerable significance but with a lower sense of threat than you experienced, just how much your own role was appreciated in that nation.
17 This occasion should not pass without an acknowledgement of the contribution to the collegial life of the court that has been made by your wife Di. Long suffering is an adjective that would come to mind, but for the fact that she has never manifested any indication of suffering at all. She has shared many of your own interests and qualities, including your strong sense of civic duty and a very real understanding of the life of the profession and the significance of the judicial role.
18 Your Honour, I know I speak on behalf of all of the judges of the court when I thank you most profoundly for your contribution to the law and to this court, and to the way that you and Di have enriched all our lives.
19 I and we look forward to a continued association because of your decision to accept appointment as an acting judge. I could not be more pleased personally that your Honour has agreed to do so. You will I am sure be assailed by tempters and temptresses bearing highly lucrative offers to devote yourself entirely to commercial arbitration. I trust you will respond in your inimitable style: “Get thee behind me Satan”.
20 I know you would not be retiring but for statutory compulsion. It would be wasteful, bordering on the ridiculous, if you could not serve as an acting judge for more than three years because of the existing statutory prohibition.
21 The remorselessness of the demographic challenges facing Australia is such that compulsory retiring ages need to be reviewed. Some such age is, of course, appropriate for judges in view of the inability to remove a judge whose decline in powers does not quite reach the required depths. However, as your own energy and mental acuity attests, an increase in the age to seventy-five for judges and seventy-eight for acting judges is now appropriate.
22 At your swearing-in you concluded with a reference to the prophet Micah, explaining that what you would seek to do as a judge was, then quoting from the Old Testament: “to act justly, to love mercy and walk humbly with my God”. You have achieved all three in a long and distinguished judicial career and we all look forward to your continued contribution of the same character.
23 THE HONOURABLE R J DEBUS MP, ATTORNEY GENERAL OF NEW SOUTH WALES: May it please the Court. Your Honour it is my great pleasure to speak upon your retirement as a member of the Court of Appeal of New South Wales and to express my appreciation for your valued service to the State. It has always been my understanding that you are regarded by your brethren as an exemplar in the role of a judge of the Court of Appeal and I make the observation that I have now been lobbied three times today, once publicly concerning the statutory age of the retirement of judges.
24 This your Honour is my final swearing out in my role as Attorney General and I do not get one of these myself. I, instead, will be the beneficiary of an Australian Labor Party fundraiser where rubber chicken, cask wine and good humour will abound until the bladders within the casks have been wrung dry. Imagine a Barry McKenzie movie and double it. Enough of my own jealousy.
25 Your Honour you were born in Sydney, the child of Claude and Olwen. You attended Beecroft Grammar School in your primary years before embarking upon secondary studies at Cranbrook School and while you were at school your father worked as the private secretary for the Colonial Sugar Refining Company in Fiji, effectively making Fiji your home away from home during school holidays and as his Honour the Chief Justice has just demonstrated, you maintain a fondness that has not dimmed for that place.
26 You were among the top students in your year at Cranbrook. Some say that it was your overwhelming familiarity with the school library and its contents which gave you the edge. You soared to the lofty heights of librarian and were involved, I am told, in a Discussion Group that in March 1951 sponsored the topic “That the Arts have moved away from the Common People”. It helpfully included a comparison between the Greek theatre in the time of Pericles and modern motion pictures.
27 It is unclear how the common people profited from this discussion, but it is plain to me that it was less illuminating on a practical and ethereal level than the topic in Term two of 1951 “The effect of Clothes on the World Today”.
28 Your Honour reported at the time that the discussion investigated why “showy and unusual clothes are worn with special attention being paid to bodgies, widgies and the wearers of zoot suits. It was said that they were worn to attract attention, raise the wearer’s morale and as an escape”. Unlike the clothes we are all wearing today.
29 Your Honour went to the University of Sydney when you left school and where you maintained your extraordinarily high academic standards. You are remembered as a tremendously learned and popular student who spent almost every spare minute studying. I say “almost” because you were once seen selling tickets for a Bohemian Bacchanal.
30 It is unfortunate that your friends and associates during this time listened closely to what you said, otherwise we would have missed an expression of your most heart-felt desire when you were reported to have said “I want to be like Sir Edmund Herring, a soldier, a scholar and a saint”.
31 Having already taken care of the scholar part you threw yourself wholeheartedly into the University Regiment and you later served with the 17/18th Battalion based on the North Shore.
32 A life long association with the Anglican Church was also kindled during that time.
33 Obviously University life was agreeable for you graduated with distinctions in your Arts Degree and with First Class Honours in Law.
34 The first old Cranbrookian to be appointed as a judge was Bruce Mcfarlan QC, who was appointed to the Supreme Court in July 1959 and you were Justice Mcfarlan’s first associate. You later made the leap to the Bar where you were fortunate to read with Sir Laurence Street.
35 Your career at the Bar, over 14 years as a junior and 17 as a silk, was extremely busy and successful and you appeared on numerous occasions in the High Court and the Privy Council.
36 I am advised that you were also extremely fit and preferred walking up the ten or so flights of stairs to your chambers instead of taking the lift. Your former colleague, Justice Meagher, was not known to share your embrace of the stairwell.
37 In one very substantial litigation exercise I am informed involving several prominent banks, you led a team of barristers, including David Bennett, Arthur Emmett and Tony Meagher, vast amounts of work were completed in a dwelling which became affectionately known as “Camp Handley”. “Camp Handley” was an egalitarian establishment where everyone did their bit, except David Bennett who took the liberty of having smoked salmon shipped in.
38 You were a talented and quite exceptionally hard-working leader who knew how to get the best out of people. You were known to be a dedicated learned and formidable counsel.
39 You were appointed to the New South Wales Court of Appeal sixteen years ago. I am told by those who have served with you that when you arrived in the Court of Appeal you repeatedly demonstrated an encyclopaedic knowledge of case law.
40 Your only rival in this respect was the now retired Justice Michael McHugh. Whenever a point arose you would name the relevant cases and their citations and most disconcertingly of all, the place on the page where the governing principle was stated. His Honour the Chief Justice has also referred to this characteristic.
41 In an age of Google, mobiles and text messages Justice Michael Kirby reminds me that we will never again see such a sharply focused intelligence and recollection of the case books.
42 I am also told that you were a great talker on the Bench. At least one of your colleagues recalls, I should say fondly, that “Justice Handley added an hour to every case I have heard”.
43 You also balanced a heavy judicial workload with some extra curricular work as the author of numerous law journal articles and as the editor of several important works, including the third edition of The Doctrine of Res Judicata and more recently a book entirely on your own entitled Estoppel by Conduct and Election. Neither book threatened the CSIRO Diet book or the latest Harry Potter in sales but they were extremely well received in the legal profession.
44 Your Honour’s dedication to writings that others might cruelly describe as obscure came as no surprise to me. My exposure to your Honour’s powers of persuasion was in equal parts memorable and disturbing. The object of your campaign was not a rule stemming from the Magna Carta or international convention but the principle of set-off. You relentlessly pursued me about it as a hound would a fox. I found it easier to crumple at an early stage in this debate and to yield to your insistence that a savings provision should be inserted in the Imperial Acts Application Act 1969 to include a provision similar to the savings provisions included in the Civil Procedure Acts Repeal Act 1879 in the United Kingdom and the Statute Law Revision and Civil Procedure Act 1883 in the United Kingdom. This meant framing a Westbury Savings provision which preserved the doctrines and principles established by the Statutes of Set-off. It was no easy concession.
45 At the end of this process your Honour I felt not unlike Basil Fawlty did at the end of entertaining his German guests at Fawlty Towers, drained and a little emotional.
46 Your Honour’s dedication to the Bar and to your Church and your school are demonstrated through your many contributions. For the Bar in your presidencies of the New South Wales and Australian Associations; for the Anglican Church in many roles but particularly as Chancellor of the Diocese of Sydney; for Cranbrook, on the Council of which you have served from 1974.
47 You have a loving wife, Di, four sons, David who is the founder of Sculpture by the Sea, Duncan, John and Mark, and four grandchildren.
48 I am told that your wife has taught you everything you know about art and, what is more, taught you to appreciate it as well.
49 One thing is sure as the Chief Justice has just demonstrated, you will not be idle in your retirement. Your energies will be consumed in further appearances in this Court but also I hope in your interests of trekking, swimming and art.
50 When looking back at your rich career, no objective person could fail to see one thing, you are a good man and a person who believed in the highest standards. You have made a difference to which we all say “well done” and on behalf of the Bar I thank you for your invaluable contribution to this State.
51 MS J McPHIE, PRESIDENT, LAW SOCIETY OF NEW SOUTH WALES: MCPHIE: May it please the Court. On behalf of the solicitors of New South Wales, it is a privilege to be given the opportunity to thank and bid farewell to your Honour in his retirement from the Bench of the Supreme Court of New South Wales.
52 I would like to echo and endorse the tributes made by the Chief Justice and Mr Attorney, and join with them and your colleagues today in remembering and celebrating your long and distinguished career, and to wish you well in your retirement, or what we now learn to be your semi-retirement, but so pleased that your experience and style will not be lost to us at this point in time.
53 More than words I think as the attendance of the well wishers here today is the testimony to the esteem with which you are held within the legal profession and the wider community. We have heard of your early education at Cranbrook and it seems that you enjoyed your educational experience so much that you have continued a long relationship with the school. It has been said that you have been a member of the Cranbrook school council since 1974 and president since 1999. Your Honour and your four sons were also educated there, and you were named Old Cranbrookian of the year in 1998.
54 Your Honour was called to the New South Wales Bar in 1959 and we have heard that you rose to the position of Queens Counsel in 1973. Why I re-state that, I would like to embellish, because during this time you built an imposing reputation across fields of litigation, particularly concentrating on equity and commercial work, intellectual property and industrial relations. You became known as an extremely thorough, fearless, persuasive defender of the law, and a strong leader and mentor for the legal profession.
55 Friend and colleague Justice Heydon recently spoke on Justice Handley’s time at the Bar and I would like to quote him by saying, “Ken Handley was feared greatly by opponents not just for his learning, his dedication and his pitiless precision but also for his first rate skills as a cross-examiner of experts in recondite fields of knowledge.”
56 During his Honour’s seventeen years as silk, you not only excelled in litigation but you worked tirelessly to serve and promote the legal profession, for which I thank you.
57 As we have heard, you were appointed as a Judge of the New South Wales Court of Appeal in 1990, bringing to the Bench a unique mix of knowledge, skill, untiring dedication, and absolute commitment and uncanny recall. Your Honour’s unique mix of skills has not only benefited the Bench but you have been highly committed to the community work.
58 We have heard from Mr Attorney about your work as the Chancellor of the Anglican Diocese of Sydney from 1980 to 2003, but further, you were a member of the Appellate Tribunal of the Anglican Church from 1980 to 2004.
59 It is no surprise that the Australian community thanked you for your community and professional work by appointing your Honour an Officer of the Order of Australia, for which we congratulate you.
60 During your illustrious career, as we have heard from the Chief Justice, you managed to attend Cambridge as a visiting Fellow in 1995 and in 1998, and we have also heard of your work with the Fijian Court of Appeal from 1996 to 2003, and you are still a part time member of that court.
61 Your Honour, on behalf of the many solicitors who have appeared before you, I would like to extend the profession’s gratitude for your contribution which you have made to them and the community of New South Wales. Your retirement will leave a considerable void in the judiciary, but I am pleased that that is not lost to us at this time. I have no doubt when you do have more time that your service to the greater community will continue and your legacy and contribution will undoubtedly make the community a better place for your longer hours that you will afford to give them.
62 We do wish you well, your Honour, and hope that you enjoy your retirement when it finally comes, but for the meantime we are pleased that you will be back on this Bench as an Acting Judge. May it please the Court.
63 HANDLEY JA: Thank you, Chief Justice, for your generous remarks. Thank you, Mr Attorney, for your generous remarks and for making time to be here. Your support for the Court over many years is greatly appreciated and you will be missed. Thank you, Ms McPhie, for your speech and the research that lay behind it. I should also thank you, Mr Attorney, for the research that lay behind your speech. I didn’t think when I was misconducting myself at Cranbrook in 1950 or ’51 that I would have it repeated in front of me in 2006. I thought there was a statute of limitations.
64 Everyone is saying good things about me so it must be like this at a funeral. Of course, this is the retirement ceremony you have when you don’t have a retirement.
65 Although I have been here a long time, there are Judges still serving who were on the Bench when I was appointed - Justices Bryson, Grove, Hodgson, Studdert, Sully, Young and Windeyer.
66 Speakers and victims on these occasions avoid the ruthless honesty of Oliver Cromwell who wanted his portrait painted warts and all. The much lamented Harold Glass had a very different view. He said that flattery of the judiciary was so important that it had to have priority over all other Court business.
67 Courts are not the only places where language has layers of meaning. A reference for an incompetent employee who was leaving to pursue fresh challenges stated: “I cannot recommend him too highly or say enough good things about him. I have no other employee with whom I can adequately compare him. The amount he knows will surprise you. You will be fortunate if you can get him to work for you.”
68 There is also a code for school reports which I picked up over the years. If you read that your son is easy going it means he’s bone idle. If you read that he’s helpful it means he’s a creep. If he’s reliable, that means he dobs in his mates. If he’s forging his way ahead, he’s cheating. And if all his work is of a high standard, you know that you and your wife are ambitious, middle class parents.
69 Counsel’s increasing irritation with a Judge’s inability to see the obvious merit in his or her argument is masked, as we know, by growing obsequiousness which moves from “with respect your Honour” step by step to “with the most profound respect your Honour,” which cannot be translated in polite company.
70 A short tempered Judge will be told at his much awaited retirement “your Honour did not suffer fools gladly.” I’m glad no one used that expression of me today. Some years ago the Presiding Judge in the Court of Appeal gave a short extempore judgment endorsing in fulsome terms the judgment of the trial Judge and finishing “and there is nothing that I can possibly add.” The second Judge immediately said “I agree” and the third Judge said he agreed with the second Judge. It will not surprise you to know that Mr Justice Meagher was the second Judge.
71 My two really important achievements are not in print. Twice I persuaded colleagues to leave things out. A draft judgment in a Family Provision case included the sentence “the deceased left a modest estate of $800,000.” I said to the author that some would kill for less and happily modest came out. In the other case, a family dog charged a bicycle and its rider was injured. His action against the dog owner succeeded and the case came to us, but the Court was divided. Roddy Meagher, whose own dog had a well deserved reputation for ferocity, would have allowed the appeal because the accused was only being playful. His colleagues disagreed, but judgment was delayed for a considerable time until I managed to persuade Roddy to tone down a sentence which read “the accident occurred at X street in Y which the Court was informed was a suburb of Sydney.”
72 My great failure has been to persuade colleagues to write shorter judgments. I am a disciple of Blaise Pasquale, the 17th century French philosopher, who once apologised saying he would have written a shorter letter if he had more time.
73 I am about to leave through the front door but, as has been mentioned, next year I sneak in through the back door. By consent of Diana and the Chief Justice I have sentenced myself to three more years of community service at a less intense level, to be served by way of periodic detention with a minimum term of twelve months. The English have a pun for retired Judges who do this sort of thing. We are called retreads.
74 There are some I must acknowledge. Sir Laurence Street and I go back to the early fifties. Gordon Samuels and I go back to the middle fifties. He was coming but unfortunately he has had to go to hospital, but fortunately there is nothing acute. He should be out in a day or so.
75 The solicitors present include John Currie and Nick Carson. They sent me some of the most important briefs I ever received, the first ten. Moreover, they kept sending them. Thank you. I also thank former colleagues and the Judges and former Judges of other Courts who are here. Thank you, Chief Justice Gleeson, for coming today. It’s very important that you keep an eye on the major source of your work. I am delighted that Joe Campbell is to be my successor. We also go back a long way.
76 I must thank my three long serving associates: Margaret Anderson, who is here, Jennifer Donaldson, who is in England, and Lynn Nielsen, who is my current associate. Their patience was extraordinary, particularly when retyping the drafts of my books. Fortunately they only had to type one each. They did a hundred and one things for me that enabled me to concentrate on my real job.
77 There are also a number of my former tipstaves here and my current tipstaff of course, and they did a lot for me by way of personal things and also legal research from time to time when I hit a brick wall. They also were able to use this machine called a computer that I am having to come to terms with as I face retirement, or semi-retirement.
78 Although I am past the Biblical three score and ten, not all see me that way. I invited Lady Byers to come, who was going to be present, except Gwen Macgregor’s funeral is this morning and she’s gone there. When I asked her to come she said “Good Lord, the babies are retiring.”
79 I found judicial life fulfilling and did not look back. At the Bar I had years in the scrum which was hard work and I was ready for the quieter life of a referee. If you know most of the rules and are fair most of the time, you don’t get booed too often. I have fulfilled my ambition to stay off the front page of the Sydney Morning Herald. It is the old story, if the bridge stays up there’s no news. Life in the Court of Appeal is hard work, but we are a happy Court with a great collegiate spirit. We respect our differences and know that none of us is as smart as all of us. Judicial life gave me the great privilege of long leave, which enabled me to write my books. Senior lawyers build up a lot of intellectual capital, but it becomes a wasting asset. Scholarly articles and books can capture this intellectual capital, preserve it and pass it on.
80 I take pride of the appropriate kind in my long association with the Anglican Diocese of Sydney. It actually believes in the fundamentals of the Christian faith and unlike some Anglican Dioceses it accommodates every shade of Anglican worship within its borders. There is room for legitimate differences of opinion on some questions, but this is not the time and case to explore them. I believe that in this audience, my eyes are slightly misty, there are two of the Archbishops I formerly served, Harry Goodhew and Peter Jensen. Thank you for your fellowship and Godly example. I think Bishop Cameron is also here. He married Di and I in 1963, was at my swearing in, and we stayed in touch.
81 I have not had to apply a Human Rights Act and I am grateful for that. There is no such thing as a free human right. Every one comes at a cost which must be borne by the community or other individuals. The reach of laws against terrorism, the legalisation of the abortion pill, scientific experiments with human embryos and of euthanasia raise political and moral questions which cannot and should not be settled by judicial decision. Most people have opinions on these matters and a Judge’s opinion is no better than that of anyone else.
82 Judges do not have democratic legitimacy. We are not elected by the people and, except in extreme cases, we are not accountable to them. We have no business deciding political questions. The statutory text enacted by Parliament has democratic legitimacy, but under the rule of law its meaning and application are proper questions for a Court. The Court seeks to be faithful to the text of ordinary legislation and Parliament is the master. The position is different with Human Rights Acts because of the wide general language in which they are expressed. They are a blank canvas onto which Judges can and do project their moral and political views. The process was described by Humpty Dumpty in Alice and Wonderland: “When I use a word it means just what I choose it to mean, neither more or less. The question is who is the master.” Under a Human Rights Act the Court is the master.
83 The results are there for all to see. In 1973 in Roe v Wade the US Supreme Court decided that States could not criminalise all abortions. It laid down different legal regimes for each trimester, which made it harder to obtain a lawful abortion at later stages of the pregnancy. Whatever one thinks about abortion, and I’m not expressing an opinion on that, one can only marvel at the process of statutory construction which derived the decision and these regimes from the language of the fourteenth amendment which prohibited the States depriving “any person of life, liberty or property without due process of law or denying to any person the equal protection of the laws.” The decision of course has not quelled the controversy.
84 In 1998 in Osman v The United Kingdom the European Court of Human Rights held that Article 6 of the Convention created a substantive right to sue the police for negligent policing. Article 6 provides that in the determination of his civil rights and obligations, everyone is entitled to a hearing by a tribunal. It says nothing about the contents of those rights and obligations. My last example is the decision at first instance in Pye (Oxford) Ltd v The United Kingdom last year. Article 1 provided that no one is to be deprived of property except in the public interest in circumstances provided by law. It had been thought that it was directed to acquisitions by the Government, but the Court held that it was fringed by a general limitation statute which extinguished the title of a documentary owner after twelve years adverse possession.
85 Human rights are the flavour of the month for some, but the public should realise they are a sugar coated pill. An accurate title for such an Act would be The Parliament (Transfer of Powers to the Courts) and Lawyers (Augmentation of Incomes) Act. Politicians and others who advocate a Human Rights Act do so either because they do not understand what would happen or because they understand only too well. The latter hope to increase their power and achieve legal and social change through the Courts that they cannot achieve through Parliament. This is government by litigation and when change occurs in this way no one is accountable, not the Judges and not the politicians.
86 Judges take an oath to apply the law without fear or favour, affection or ill will. At my swearing in I said that the oath probably came from the Law of Moses. Deuteronomy states: “Hear the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of them and an alien. Do not show partiality in judging; hear both great and small alike. Do not be afraid of any man.”
87 This of course is not part of the natural order but reflects the higher wisdom of Christ’s golden rule that we should do unto others what we would want them to do to us. This he said summed up the Law and the Prophets.
88 I am pleased that three of our four sons, two of our daughters in law and two of our four grandsons are here. Di brought up our sons single handed at times and did a great job. Each of them is pursuing his chosen career and only one, you’ll be pleased to know, is practising law. We are proud of each of them and of their wives and our grandsons. Each is a fine human being. Di, well what can I say. You have been and are a fantastic wife, mother, grandmother, and I understand mother in law. You have stuck with me through thick and thin, and there have been too many thins. Di suggested I use my long leave to write law books, and at times she must have regretted doing so. Darling, thank you for everything.
89 As I stand on the verge of seventy two I continue to look forwards and upwards, and when age finally wearies me and the years finally condemn I will still look forwards and upwards. In the words of the old hymn, I nightly pitch my moving tent a day’s march nearer home. Thank you for coming and for your presence.**********
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