Spare some pity for the predicament of the UK government after the presentation to Parliament of a 329 page report that Putin probably authorised the Litivinenko murder in London by Russian agents. Luke Gittos, Law Editor of the Spectator reminds us that this problem is a consequence of the overweening confidence of activist judging.

What can the UK do now? If it does nothing to indicate the unacceptability of the Russian leader’s conduct it discredits its own legal system. If it takes vigorous and genuine action an uncooperative Russia could cost more lives and treasure than the wrong could possibly be worth, without acheiving anything. For example a strong and sustained response might reduce the prospects of saving the $billions, and the many more lives that might be saved if a reasonable modus vivendi can be worked out with the Russians in Syria, instead of the implacable competitive hostility that may be the alternative.

No judge can balance such possibilities in advance in the way an elected leader must, continually. Even if the judge wanted to do so, being explicit about the balance would imperil the very legal values judges seeks to assert over what they can seem to feel are tawdry and inferior political calculations.

New Zealand faced the same dilemma after we caught the Rainbow Warrior killers. The capture was good for the reputation of our Police. But bad for the overall reputation and coherence of our criminal justice system. Real-politik – taking account of the costs and risks and benefits to New Zealand of prolonged antagonism from France, forced David Lange, among the most impetuous of our Prime Ministers, to make a mockery of our sentencing. He was forced to outrage his own voters with  early release of the killers. France hardly bothered to disguise their contempt for our sensitivities when they trashed the  terms of the deal which tried to camouflage the reality, that the French were taking their agents home to honour.

The events poisoned New Zealand, and New Zealander relations with France for years. How much better it might have been if we had been left to nurse bitter suspicions, without having our noses rubbed in the truth, and our powerlessness in the face of it.

Now the UK is saddled with similar risks, though it looks as if the Russians will take more care to avoid embarrassing the UK with people in the jurisdiction to charge.

We should rightly share the outrage of the victim family. But equally we should recognise the hypocrisy in our position. Millions enjoy watching Jame Bond dealing to foreign (sometimes Russian) agents no less summarily than the Russians dealt to their ‘traitor’ in London. Drones are eliminating enemies of our culture and our allies almost daily, without trial.

Lawyers and judges are obliged to be remorselessly  consistent (like cases must be treated alike is a fundamental of the rule of law). But such rigidity is likely to be both foolish, and impossible to sustain in international affairs. That is also the case in many other spheres that until recently were relatively immune from the pretensions and ineffable ignorance of lawyers.

Second guessing in matters as mundane as employer/employee relationships and school disciplinary actions involves the same arrogance, however reduced the scale. There is the same impossibility of ever knowing just what was really behind the incident that brings the relationship to breakdown. But more importantly to the parties there is the same blithe legal indifference to practical outcomes.

Those who know more of the facts are often outraged. Many will learn contempt for the law. They see posturing by a self-important clique so wrapped in the dignity of the law that they feel no need to consider the full consequences of their actions. In many such cases it is clear that none of the lawyers (judicial and otherwise) think they might have a responsibility to decide whether they are serving the best long term interests of anyone involved, even the plaintiffs.

Instead they think it is sufficient to believe that their virtuous intention – to apply the rules (often a charade of procedure) is enough.

The Owens report merely confirmed and detailed what was widely believed.  It is crying over spilt milk with no credible expectation of a better outcome. The lawyers who forced it were uninterested in whether there was a realistic prospect of acheiving justice. They saw the dilemma it leaves for the future as nothing to do with them.

The judge made law that authorises lawyer hind sight interventions in thousands of difficult daily management matters flows from the same spring of arrogance and indifference. Under a wiser previous generation of lawyers those matters were left to the parties, knowing that often they would reach results that could be criticised. But remembering too that mostly in human affairs a prompt outcome, and getting on with living is hugely preferable to tempting people to put their lives on hold, awaiting the decision of authorities who will not have to wear the costs of their delay and interventions.

More humility toward those who must exercise awkward powers would go a long way among the generation of lawyers in power.