It's time to change the contempt of court laws.

Let it be said, for it is no secret among people that know me, that I am no fan of lawyers or the law. But even I must begrudgingly concede that some sort of system of laws and courts is a necessity. What I would insist, however, is that they are only a necessity - that is to say, a means - largely regrettable - for achieving a specific goal which is a peaceful, safe, non-violent society.

There is for me, nothing magical or mysterious about the law or the legal system. They are simply tools for achieving social harmony, just as electric wires and water pipes are tools for delivering power and water to my kitchen. The Law is not some sort of magical Harry Potter world of arcane knowledge and be-robed wizards though you might well imagine it was if you go into a court room. Australian lawyers still prance about the court in black robes and wigs while judges preside from the bench in long tresses and robes which increase in splendour as they rise up the ranks. There is also a pervading sense that lawyers and jurists see themselves as superior class of beings who are not going to take any impudence from us muggles.

Recently, three members of the Australian Parliament were summoned before the Supreme Court of Victoria to "show cause" why they should not be charged with contempt for criticising the sentencing decisions of some (unnamed) judges.  At first the politicians admitted they had perhaps expressed their views a little immoderately but did not apologize. When threatened with contempt of court however, they were all forced to apologise.

I cannot express how outraged I am at the thought of three members of Parliament, duly elected representatives of the Australian people, being forced to abjectly apologise to what is essentially a group of public servants: the only reason being that these paid government employees had the power to send then to jail if they didn't. It is not only a violation of the right to freedom of speech but a perversion of how power in society ought to be exercised.

Contempt of court is, of course, a law which makes it an offence to disobey an order of the court. Fair enough, but it has been expanded however to include such things as making comments about matters that are sub judice in other words, relating to a trial that is in progress. This, it is claimed, is because, such comments can be construed is being an attempt to influence the decisions of the court.

Now, it might be faintly possible to see how comments might influence a jury hearing a case, but I'm not sure why it would be a problem in cases where only a judge is presiding. Are judges worried that a newspaper editorial in a paper, or television interview might cloud their judgements? Are they so unconfident about their own power to decide a case that they don't want to hear anyone else's opinion because it might confuse them?

Of course not. The reality is just that judges don't want people saying anything that might contradict them, and they will particularly not countenance anyone making any derogatory comments about them or the court procedure. It's the impertinence of a lay person presuming to comment on a trial, or indicating anything less than respect and deference to the court that is not to be tolerated. Thus it is an offence to comment unfavourably on a court's decision even after the case is over when clearly there is no risk of influencing the decision.

In the Victorian case, the judges justified their decision to take action against the politicians by citing the constitutional rules on "separation of powers." This simply states that the separate branches of government, the Legislative, the Executive and the Judiciary must operate independently and one must not be able to influence the other.

This is of course an absurd principle that has no justification in the modern world, and particularly not in Australia where, for a start, there is no separation between the Legislative and the Executive. However, while it is obvious that courts must be independent from outside influences in making their decisions it is equally obvious that the principle is designed to prevent anyone influencing any particular case, not the overall operation of the courts as an public agency.  

It is also important to note that the comments of the politicians were in relation to sentencing, which is already not a wholly independent function of the court. The Victorian Chief Justice noted that attempting to influence the court in its sentencing decisions is ‘impermissible in law”. Now, if that is the case, then how are victim-impact statements, pre-sentence reports and other testimony from experts, which are considered by judges and are specifically intended to influence sentencing decisions, permissible in law? If victim impact statements are permissible, in a case where the victim is the wider community, as in the case of terrorism, why should not representatives of the community be allowed to make statements that reflect the concerns of the community. Surely the public at large has a legitimate interest in the sentencing of people who have declared themselves to be enemies of the public.

And surely, if all sources of influence are to be eradicated than the reportage of all crimes, especially those of highly disturbing nature would have to be prohibited until after the completion of the trial.

In regard to the fact that is “constitutionally impermissible” for one branch of government to influence another let us say that, for a start, it would be absurd to imagine that the Legislative branch of the Australian government does not influence the Executive Branch as they are drawn from the same group of people who alternately sit in Cabinet one day and Parliament the next. Unlike the United States where the President is separately elected and empanels his own Cabinet from whomever he chooses, the operations of the Australian Executive, i.e. the Cabinet and Public Service, are inextricably entwined with decisions made in the Parliament. What do we imagine is going on when an Senate Estimates Committee interrogates Ministers and public servants about their actions?

Secondly, defining the Judiciary as a branch of government is anachronistic and repugnant. Judges are not elected and they have no power to pass laws. Essentially the Judiciary is a branch of the public service and shares the same status as the Police, the Armed Forces and the Departments of Health, Education, Customs and so on. Like those other agencies they are paid for from tax payers' funds and ultimately accountable to Parliament to fulfil the role assigned to them. The Courts are one part of the trio of agencies that make up the Law Enforcement system - Police, Courts and Correctional Services. Significantly the Police and Correctional Services are legally, and frequently criticised. So why can't the courts be since they are part of the same system? 

Of course independence is a necessity, but the question is what constitutes independence. The concept of anyone in power, elected or not, being able to influence the court to find someone guilty or not guilty is unthinkable. In the same way, the notion of a politician being able to tell a doctor how to perform an operation is unthinkable. However, if a disturbingly large number of patients start dying, the doctor responsible can be suspended, investigated, fired or even charged with criminal negligence. In other words, the independence of the medical practitioner and the doctor-patient relationship is respected, but still conditional upon the doctor providing the service they are hired to, which is make people well.

If a judge were, hypothetically, to start making decisions that were dangerously irrational some intervention on the part of the government would surely be not only justified but essential.

In any case, sentencing is a different matter. As mentioned above, judges typically request and receive advice from a variety of people before making sentencing decisions because sentencing in not based on a knowledge of law alone. Indeed it has been suggested from time to time that, because of their inexperience in assessing the likelihood of offenders re-offending, sentencing should be taken out of hands of judges and passed over to specialist sentencing tribunals. It is not known whether this would be an improvement but the notion itself is an acknowledgement that a different skill set is involved.

Finally, however, the reliance on "the separation of powers" argument by the court is misleading because the reality is that any citizen who openly criticizes the court can be charged with contempt of court whether they are in a position of power or not.  This notion that respect for the court and the judicial system supersedes all over considerations (such as freedom of speech) is uncomfortably reminiscent of prelates who placed the reputation of the Church above justice for victims of abuse.

The Contempt of Court laws must be amended to apply solely to situations were people directly disobey orders from the Court. To use them to shield judges from criticism is itself contemptible.

Why Brexit is the first step to combatting terrorism

For many people, the primary cause of the Second World War was nationalism – the ethos of creating and promoting a strong and distinct sense of national identity among the citizens of a country. In particular the intense nationalism of Nazi Germany, which characterised Germany and Germans as the rightful rulers of the world, followed closely by the fanatical patriotism of the Japanese who also regarded themselves as destined to rule at least the Eastern Hemisphere was blamed for the conflagration the consumed 40 million lives.

In fact, nationalism had been under attack from the Marxists in the 19^th century. Socialists were internationalists, convinced that nationalistic sentiments, which led inexorably to wars, were part of a capitalist strategy to divide and exploit the working class.

However, nationalism has one great strength that internationalism lacks. Nationalism is a remedy for tribalism.

In promoting a national identity, citizens are encouraged, not necessarily to abandon things such as ethnic or religious identity but to subordinate them to their identity as citizens of their country. Internationalism fails to do this because it is inherently multicultural, seeking to unite people under some form of global government or ideology while at the same time retaining their local cultures and customs. In short, internationalism is essentially just anti-nationalism in that it accepts national governments as administrative and political instruments but believes that there are only two permissible types of identity – the identity which arises from your membership of a particular ethnic, racial or religious group, and your identity as a member of the global human race.

The European Union arose initially as an attempt to replace the nationalism, which people blamed for starting two devastating wars, with a pan-European identity. This worked to a certain extent with many people, notably from the intellectual classes, prepared to declare that they were “Europeans” rather than British or French. But this declaration was mostly theoretical. Defining oneself as “European” became problematic when someone asked “Well, what does that mean? What constitutes European characteristics?” The problem with creating a "European" identity is, firstly, that Europe is extremely diverse in its cultures: Greece is not like Sweden and Spain is not like Poland. Secondly, ethnic identity can be subordinated to national identity when people intermingle but in the EU, despite the opening of borders, most French people still live in France and most Germans still live in Germany. Thirdly, an essential requirement of a national identity is a physical border to define who is in and who is not in the nation. They EU’s border is poorly defined having some countries on its perimeter which are not quite in, like Norway, some trying to get in and some perhaps on the verge of leaving or being thrown out. Fourthly, national identity depends on some sort of strong central government, not only for the unification of laws, which is essential for any national identity, but also to manage the cultivation of that identity and the rituals and reassurances the constantly remind people of what country, and what kind of country they live in. The EU has no such central government, only a Byzantine bureaucracy in Brussels with an unelected Parliament and a leaders which most people in the member countries cannot name, and certainly could not recognise on sight.

For the last five hundred years, probably no country, with possible exception of Japan, has had such a clear sense of national identity as Britain, even given the separatist sentiments of some refractory Scots. From the time Henry VIII set up Britain’s own version of the Catholic Church and Elizabeth oversaw the destruction of the Armada, Britain saw itself as a unique nation, blessed with a continuity unimpeded by the constant ebb and flow of invasions and empires that constantly changed identities across the Channel. That strong sense of being English, later British, created a unity that was even capable of surmounting the British class system. The revolutionary leaders of France envied this unity and were at pains to impose a similar French identity on their country, still embodied today in the “Vive la France” attitude. The Risorgimento turned “Italian” from a geographical term to a type of citizenship and the unification of a mass of tiny fractious kingdoms and principalities into what became Germany was effected by the creation of a national identity - "German" - which subsumed older identities such as Prussian or Bohemian.

Now, it is possible to argue that this process of concatenating small countries into large countries suppressed conflict within European nations but led to vastly more destructive wars between the nations, and this indeed is true. But the fact that one of those recently formed nations got carried away with their new-found identity doesn’t mean that nationalism is a bad thing per se.  By way of contrast, we can see how quickly dismantling nationalism can reanimate old ethnic loyalties and hostilities in the case of Yugoslavia where, almost as soon as it fell apart in the collapse of the Soviet Eastern bloc, war and genocide broke out amongst its former constituents.

So what became of British nationalism when it joined the EU? The answer is that it was severely compromised by the internationalist ethos underlying The European Project. That of course was met with approval by many people – the internationalist and socialists of the Sixties and Seventies - who equated nationalism with jingoism and western chauvinism and still blamed patriotism for the two world wars. In the wake of joining the EU, cultural diversity was welcomed and celebrated and immigrants to Britain were not only permitted but encouraged to retain their own cultures and values. The result has been the creation of enclaves in Britain which are virtually countries-within-a-country. The “Trojan Horse” scandal, though dismissed as a scare by the multiculturalists and internationalists, saw several schools in the Birmingham region taken over by Moslem-dominated school councils which altered the school curriculum to conform to Islamic principles and virtually turned them into madrassas. Surveys in Britain have shown that up to 30% of Moslem immigrants believe that communities where large number of Moslem people live should be able to impose sharia law. Again, these problem largely arise because anti-nationalism believes in empowering local communities at the expense of national government.

Now, finally, Prime Minister (for the time being) Theresa May, has said “Enough is enough” and “We have shown too much tolerance for extremism.” But the real problem began long before extremism. It began with the notion that British culture and British law was nothing special and in no way superior to any other European country, or indeed the world. This comes about because  the internationalism that justifies British renouncing its own sovereignty to join the EU is the same internationalism that comprises the notion of cultural relativism – the belief that all cultures are equally good, all religions are equally good, all societies are equally effective and worthy of respect. That cancer of social relativism, which has seeped into public policies across the western world, has seriously hampered attempts in the West to stamp out barbaric practices and, what is worse, ignorance.

It is worth noting that even though American patriotism is obnoxious with its inherent belief that America is the “greatest country in the world” and crowds chanting “U.S.A.- U.S.A”, the United States, with five times the population of the UK, has experienced only a tiny handful of home-grown Islamic terrorist incidents compared to UK which, given the size of its population and the easy access to guns, is quite remarkable.

The first step to attenuating the danger of home-grown terrorism in the UK is for the country to regain its own sense of self; to regain a sense of pride not for its tolerance but for what it is not prepared to tolerate; to make young people growing up in Britain proud to be British rather than proud to be Moslem.  In short, if a country doesn’t offer young people something to believe in, there are lots of other people who will.