On Wednesday I debated fairness and the law at a seminar arranged by Middlesex University.
        One of the most interesting exchanges was about the supremacy of the European Convention of Human Rights over UK Statute law  passed by Parliament. The general view was that the UK like all other signatories to the Convention had to obey the international  law, and that law would be settled by international judges. Their decisions might be at variance with the wishes of the UK voters as expressed by their elected representatives. I was told that the inconvenience of losing a few court cases was offset by the advantage that the Convention would do more good in some countries with lower legal and democratic standards than our own.
         In the discussion we were reminded that the European Convention was the product of 1940s thinking. Its defenders accepted that in some areas opinions and general morality changes. They accepted that some opponents of gay marriage had appealed to  the Convention which implies the right to marriage is a right for a marriage of a man to a woman. They just thought they can read the Convention in a different way to modernise it without needing to amend it. Some also accepted that some issues aroused too many passions in particular countries for it to be wise to seek a conclusion through court action. Rights for migrants to change country could be such an issue in some cases.
         I reminded the audience that one of  the greatest statements of democratic rights and freedom, the American Declaration of Independence, has been much amended by changes to the US Constitution subsequently. One of its main architects was a slave owner. The authors of modern demcoracy saw nothing wrong with rights only applying to freeborn males, with little regard for the rights of women and no regard for the shared humanity of the slaves. These bad features of the original American settlement needed amending at a later date. These amendments occurred thanks to democratic actions and to protests.
      All those who rely on Treaty law from the EU and from the ECHR need to grasp that these methods of imposing morals and standards on us run the risk of being inflexible and becoming dated. Statute law designed by a free and sovereign Parliament has two great advantages over these Treaties. The first is Parliament can regularly improve and update the moral standards and viewpoints behind the laws as opinion evolves. Secondly the public can remove members of a Parliament that make a mess of it and insist on urgent change after a new election.
May 26, 2013
As you say:
Statute law designed by a free and sovereign Parliament has two great advantages over these Treaties. The first is Parliament can regularly improve and update the moral standards and viewpoints behind the laws as opinion evolves. Secondly the public can remove members of a Parliament that make a mess of it and insist on urgent change after a new election.
In short statute law has some flexibility and some democracy- though UK democracy now is very weak. Being a single vote, every five years, on a basket of issues, for one of two or three party chosen candidates, on first past the post system, with a powerful party system, MPs who say one thing until elected they do the opposite and with much of the power with the undemocratic EU anyway.
It is rather difficult to count the UK as a democracy, in any real, tangible sense.
May 26, 2013
Lifelogic, An “elective dictatorship” (also called executive dominance in political science) former Lord Chancellor, Lord Hailsham called it thirty six years ago. Still we gets the government we deserve in reality.
I still favour the Washington State / California “Top Two” Primary Election system, where the candidates indicate which party they favour, if any. Rather than the party telling us who we will be allowed to vote for. The parties hate it and keep trying to overturn it for instance;
” … continued opposition to the top-two primary by minor parties, their members, and their candidates lies on a misunderstanding of the essence of the reform. By voting in favor of Proposition 14, voters decided to put their right as citizens to pick whomever they want in June — regardless of party affiliation — before the right of private organizations — the parties — to have a guaranteed spot in November.
Where the plaintiffs saw a maneuver to discriminate against minor parties, Californians actually saw an opportunity to break free from the partisan electoral structure. With this lawsuit, the plaintiffs are arguing that their right as parties to be on the ballot in the general election supersedes the right of Californians to choose a nonpartisan primary system, whereby all candidates and voters participate equally.” (HT: IVN-US)
All governments run out of ideas after eight years IMHO. Two four year terms maximum for any politician. And, the premium prime directive; no political party that uses the Whip system should ever be more than two years from an election.
PS. Talking of democracy, have you had a look at what has happened at Norfolk County Council. I won’t mention any names, nod nod, wink wink; but, if it catches on elsewhere, could be a problem for …
May 26, 2013
I believe what has happened at Norfolk County Council bears comparison with what happened in 2010 at another “council chamber in Europe” (© Kenneth Clarke), namely that at Westminster; in the absence of any party gaining an overall majority a kind of coalition has been agreed, providing the opportunity for Tory propagandists to jump in and suggest that “UKIP is the new Labour”, while refusing to acknowledge the obvious corollary that “the Tories are the new Liberal Democrats”.
May 26, 2013
Very similar happened in Gloucestershire, and the issue was an incinerator also, and the heavy handed way the Cons majority acted in trying to steamroller the policy through, having apparently signed up B Beatty to do the construction.
May 26, 2013
Don’t forget about unelected Lords that are appointed by the Prime Minister.
May 26, 2013
Also the unelected BBC trustees and similar.
June 2, 2013
As well as unelected business leaders and the rich?
May 26, 2013
Of course case law especially tends to evolve mainly to suite the interests and profits of the legal profession, which are usually the exact opposite of the clients.
Clients want certainty, low costs, quick clear decisions, clear laws, certain outcomes and few levels of appeal. Lawyers want many level courts, lots of demarcation and delays, long cases, great uncertainty and to encourage a constant supply of plaintiffs by suitable winnings – to keep the money flowing to lawyers.
May 27, 2013
Case law is made by judges so I’m not sure why you think it has evolved to suite the interests and profits of the legal profession. Are you claims that case law makes the legal system more convoluted and that this benefits lawyers?
Perhaps the alternative is to switch to a civil legal system, like the one used in France. There’s no case so court judgments are more flexible, however they’re also much more unpredictable because each case is tried as if this is the first time this issue has ever been raised.
In conclusion you can only have legal certainty in a very rigid legal system.
May 28, 2013
“Case law is made by judges so I’m not sure why you think it has evolved to suite the interests and profits of the legal profession.”
Is this not obvious, case law is made by judges (who are lawyers and members of the legal profession) who often have the perspective of lawyer and the vested interest of lawyers and an interest in lots of complex (usually pointless expensive and time wasting too) litigation.
We need a system that evolved to suite the users of the legal system not the financial interest of the profession.
May 26, 2013
Quite so. We need a written constitution and bill of rights that can evolve only under stringent conditions, because what we have is infinitely worse, a FPTP system where parties that get less than 40% of the vote get 100% of the power, and that is an elected dictatorship trampling over minorities.
That is what Wilde was getting at when he said “democracy is the bludgeoning of the people, for the people and by the people.”
May 26, 2013
To quote Tony Wedgwood Benn: ” Why should anyone obey EU laws when they are made by people we did not elect, who will not listen to us and whom we cannot get rid of? ”
Not my favourite politician by any means but dead right on this issue.
May 26, 2013
Exactly and further do not even have the same history, legal system, or even speak the same language.
May 26, 2013
Lifelogic……….or religion, measuring system, way of voting, side of the road or ideology in general, plus they eat frogs and horses.
May 26, 2013
EU law is made MEPs who we elected in 2009 and will elect again in 2014. So we can elect them and get ride of them.
May 26, 2013
You surely do not believe that do you? If the UK voted entirely for UKIP (as they might well if Cameron continues as currently) it would make almost no difference to the stream of daft laws the EU churns out.
May 27, 2013
The UK has 72 of the 754 seats in the European Parliament (9.5%). So if UKIP can convince 40.6% of the other MEPs to side with them then they can reject any bill in the European Parliament.
The fact that the UK doesn’t have the deciding vote on which bills become law in the European Parliament doesn’t mean that there isn’t democracy.
May 28, 2013
The EU is not democratic in any way, in fact it is the precise opposite. It is anti democratic. The Commissioners are the only ones who can propose rules and regulations. The EU parliament is a pure smokescreen to fool, as it does most people. But it will come home to them in time, the EU is premised on a series of contradictions, different Nations, different tribes, different traditions and a very different idea of justice. The latter being the very opposite of where our Common Law took us…..freedom for us, tyranny for them.
May 26, 2013
You bshould get out more.
MEP’s have no power only to delay laws.The unelected commission makes the laws.
May 27, 2013
If you had done any research you’d know that the Commission proposes bills and that the Parliament can reject any bill they don’t like.
May 28, 2013
The are paid, expensed and pensioned so well to make sure they do not reject much even if they did they have no power to replace it with any new bill. So they are powerless in effect, other than as a block, which they will clearly rarely use.
May 27, 2013
The EU Council and EU Parliament share the final say on laws proposed by the EU Commission.
May 26, 2013
It’s my understanding that the EU Commission – the civil service – is the only entity empowered to propose legislation. Unless the Lisbon Treaty has changed all that, the EU Parliament cannot initiate its own legislation, which should be the main purpose of an elected assembly.
Pravda laughed at this, pointing out that the EU Commission was analogous to the old USSR Politburo, the Parliament took the positionof the toothless Supreme Soviet and the ultimate power lay in the Council of Ministers which had exactly the same title as the Soviet one. Not very encouraging for those who believe this is democracy
May 27, 2013
It’s my understanding that the EU Commission – the civil service
How exactly is the EU Commission like the civil service? It’s composed of 27 people (one from each member state).
Unless the Lisbon Treaty has changed all that, the EU Parliament cannot initiate its own legislation, which should be the main purpose of an elected assembly.
I have no idea what you’re talking about. The European Parliament doesn’t propose legislation because it’s part of the legislative branch, meaning it’s role is to vote on legislation. Only the executive branch has the power to propose legislation.
The fact that in the UK the legislative and executive branches have become fused doesn’t mean that every other country has to follow the same system.
Pravda laughed at this, pointing out that the EU Commission was analogous to the old USSR Politburo, the Parliament took the positionof the toothless Supreme Soviet and the ultimate power lay in the Council of Ministers which had exactly the same title as the Soviet one.
Just because Pravda said this doesn’t make it true. The European Parliament has far more power than the Supreme Soviet and better represents the people in the EU.
The Council of Ministers has ultimate power because it’s made up of the leaders of the member states, including the UK’s prime minister. Would you prefer the EU to adopt a system where the UK’s prime minister isn’t part of the main decision making body?
May 27, 2013
You are correct, Mr Hamilton, and on this occasion Uni is wrong.
May 28, 2013
Rick wrote: […] the EU Parliament cannot initiate its own legislation, which should be the main purpose of an elected assembly.
Perhaps you have in mind the United States, Rick. Here in the UK most legislation is initiated by HMG, which Parliament then debates.
May 26, 2013
uanime5
Even if the UK returned all its MEP’s from the same party with a clear manifesto they could not out vote the rest of the MEP’s in the European Parliament. We can elect and then not elect MEP’s but nothing will change!
The UK pays the piper but all the others call the tune! That is not democracy for the UK people.
May 27, 2013
What is your point? In a democracy you can’t expect to get your own way, all the time, on everything. You have to be prepared to compromise.
Until the UK pays more than half the EU’s budget we have no right to complain that other can outvote us in a democratic system.
May 26, 2013
I might send you an email asking you to explain how electors in Britain can get rid of MEPs elected in another country; actually you are not correct in saying that “EU law is made by MEPs”, but even if that statement was accurate I would never accept that our national law should be determined by transnational majority voting.
May 27, 2013
Why would electors in the UK have any right to get rid of MEPS from another country? That’s like saying that English electors should have the right to remove Scottish MPs.
Just because you don’t like that transnational majority voting can effect UK law doesn’t make it wrong. As long as the UK wishes to remain part of the EU we have to accept the law making system we agreed to accept.
May 28, 2013
We the Sovereign People of Great Britain never accepted the giving away of our Sovereignty, our own treacherous MPs did, we never had a voice. And the lib/lab/con, the BBC and the Media will make sure we never have.
One other point, big business has no conceivable right to demand our surrender to the EU, it is for the People to decide not business!
May 27, 2013
We keep pointing out that the Commission makes EU law, not MEPs. So those who make the rules are not answerable to us. Is that something you approve of Uni? Or would you concede that a sovereign British parliament answerable to the British electorate is a better system?
May 28, 2013
You can keep pointing out the Commission makes EU law but it does not make it true 🙂
May 26, 2013
This ability to amend and update law can also be a very great disadvantage. In America the constitution has been eviscerated and the President now claims the right to order the killing of anyone, including US citizens, at any time and anywhere. Habeas corpus has been removed. People are now subject to stop and search anywhere in the US. Privacy no longer exists in your home or online. The War on Drugs now imprisons millions and more repressive laws are introduced almost weekly.
Are these the “improvements” you are thinking of Mr Redwood? If they are I’m sure you’re happy with the trend of increasing surveillance and authoritarian laws here in the UK. I am not. We can only take so much amending and updating before we have a nightmare Big Brother state. We already have a nanny state and the step is not a big one.
May 26, 2013
Before we have a big brother state Andy? I could tell you things that would make any rationally-minded person think we already had one!
We have some very serious and dangerous enemies to fight. It would be a pity if our own government replaced them as public enemy number one, and became the focus of evil in their stead. Perhaps there ought to be a greater public awareness of what the powers that be actually do already, supposedly in our name, and in our best interests.
Tad Davison
Cambridge
May 28, 2013
Well said Sir. Remember Hutbers Law, ” improvement means deterioration”!
May 26, 2013
Dear John–Further to your liability or otherwise as “publisher”, and for what little it is worth (not much especially as I am no lawyer, but maybe this is of interest), American federal law (“Section 230 protection”)…..should, as I understand it, give you, as a web host, “protection against legal claims arising from hosting information written by third parties”. Simplifying, no doubt dangerously, the question across the Pond seems to be, as one might expect (says me), is whether you as mere host were the “information content provider”. So perhaps the question of your liability or not is not quite so obvious as you and Denis Cooper, to whom Respects and Regards, seem to think. As always, it is all much clearer under American law.
May 26, 2013
Interesting.
But in this country there has even been an unsuccessful attempt to sue google over the content of references thrown up in a search:
http://www.guardian.co.uk/media/2009/jul/20/google-defamation-high-court-ruling
The court rejected that on the grounds that google was only a “facilitator”:
“The company claimed that Google was liable as a publisher of defamatory comments. Google responded that it has no responsibility for the words and comments.
Mr Justice Eady ruled in a judgment in the high court on Friday that Google was a “facilitator” and not a publisher of the content.”
May 26, 2013
Denis–Blimey–I hereby acknowledge the cheers of the crowd, because, if I say so myself (and I do), your last sentence sounds very similar to much of what I said in the first place, so thank you for that. Remember I favoured (invented!) the term “facilitating conduit” for John. Best I understand the American position, it is deemed too much of a constraint on free speech for a complainant to be allowed to go against both originator and mere facilitator. Makes sense to me. Agreed that I don’t appear to know (though yon Judge seems on my side!) exactly what a publisher is. That said, I continue to incline to the view that a publisher, if liable at all, is more so if he is paid.
May 26, 2013
There are some things here which English people ought to be up in arms about.
First of all, we have always had a right to be judged by our peers. That means a jury. The European Court of Human Rights has no jury. This is now spreading to our English courts too where the jury is non existent in Family Courts. I wonder if anyone remembers the travesty of justice that happened regularly in the Soviet Union with professional judges and no juries? Many of the countries’ judges come directly from this tradition. Roman Law, too, has the same outlook.
Secondly, the judges in England have a totally different legal approach to continental judges. Here the law is Common and goes back over the centuries. If it has to be tweaked, then parliament, which we elect, tweaks it. Her Majesty the Queen is the fount of justice after all.
In the ECHR, the judges are, of course, chosen from the European countries, most of which have absolutely different traditions. For them, law is made centrally, often by ukase or decree. And what can be given by a despot can, of course, be taken away by the successor of the despot.
We have just one judge on the panel, PaulMahoney.
However we have simply given all our rights up. What a lot of wasters and losers we have become!
May 26, 2013
Much of what the secret family courts are doing, is very often a total outrage against justice, fairness and common sense.
May 27, 2013
First of all, we have always had a right to be judged by our peers. That means a jury. The European Court of Human Rights has no jury.
You know what else doesn’t have a jury: magistrates, where 98% of criminal cases are tried.
Also none of the appellant courts have a jury because the role of the jury is to establish the facts, while an appellant court establishes the law. So as the European Court of Human Rights (ECHR) is an appellant court it has no need of a jury.
This is now spreading to our English courts too where the jury is non existent in Family Courts.
In the UK civil cases haven’t been tried by jury for a long time (the only exception is defamation). So it’s clearly nothing to do with the ECHR.
Also just because the USA uses jury trials for everything doesn’t mean that jury trials are automatically the best way to decide something.
I wonder if anyone remembers the travesty of justice that happened regularly in the Soviet Union with professional judges and no juries?
I can’t recall any show trials as they preferred to imprison or assassinate opponents. Holding a trial would just give them an opportunity to make their criticisms public.
Though I can remember a large number of show trials held in the USA during McCarthyism because Americans believed
witchescommunists were planning to attack them.Here the law is Common and goes back over the centuries.
No it doesn’t. As common law is overwritten by statues there’s almost no common law that goes back more than a century. Where the common law does go back centuries it’s usually because of a principle that’s so unimportant that it rarely ever comes to trial.
For them, law is made centrally, often by ukase or decree. And what can be given by a despot can, of course, be taken away by the successor of the despot.
That description applied more to the UK than any other European country, mainly because the UK lacks a written constitution making it easier to remove people’s rights.
However we have simply given all our rights up. What a lot of wasters and losers we have become!
These rights being what exactly? The right to send people to countries where they’ll be tortured or imprisoned without trial?
May 26, 2013
It is clear that the treaty under which the UK adheres to the ECHR does not now work in the way intended by the original UK signatories and supporters, such as Churchill. Either treaty amendments are needed to stop all the nonsense, such as the inability of the UK govt to throw out foreign terrorists and hate-mongers, or we need to leave it. The argument that this will lead other countries to more serious breaches of human rights is false. The UK will continue to uphold human rights and to criticize other countries which do not.
May 27, 2013
Given the number of human rights violations committed by the UK each year I doubt that the UK will uphold human rights when there’s no penalty for ignoring them.
Also doubt criticising countries that use torture or imprisonment while deporting people to these countries will encourage these countries to change.
May 26, 2013
Is it not rather a disadvantage that parliamentary majorities (in the UK not based on the majority of the popular vote but on the FPTP system) can force its amendments on such laws as a Bill of Rights? Are there enough checks and balances to prevent misuse? (e.g in the Netherlands two consecutive parliaments and two third majorities may be required for certain changes in the law)
The European Convention is not so set in stone that it could not be amended. It just needs 47 countries to agree and would be a slow process.
May 26, 2013
Yes and no.
As far as I’m aware the first amendments to the Bill of Rights 1688 became necessary because Mary had died of smallpox in 1694 without having produced an heir to throne, then Anne’s son died in 1700 and William himself was dying, so Parliament had to sort out a Protestant succession as a matter of urgency.
http://www.legislation.gov.uk/aep/Will3/12-13/2/contents
So is it an advantage that in the light of changed circumstances Parliament can speedily amend the Bill of Rights just like any other statute, or is it a disadvantage because one day we may wake up and find that Parliament has just rushed through a final Act to repeal the Bill of Rights, place undivided absolute power in the hands of King Charles the Treehugger, and abolish itself?
Well, all that can be said is that in practice it worked tolerably well, until we made the mistake of getting legally entangled with you lot on the continent.
Including a European Convention on Human Rights which can only be formally amended if we can secure agreement from 46 other countries, but at the same time can be given and is constantly given increasingly barmy interpretations by a bunch of “judges” in Strasbourg.
May 27, 2013
@Denis Cooper: Thank you for the explanation.
You may have to think and prepare though, for the distinct possibility that your country will remain legally entangled with us after this 2017 referendum. Maybe the UK can focus its desire to reform the European Convention on the “barmy interpretations”. Could one imagine a kind of future “accountability” in which an ECHR had to go in discussion with the various (47?) national courts and explain/defend their interpretations? Another approach might be to agree to limits of how much in detail a ECHR court may go in its verdicts.
As far as I’m concerned you might as well accept that the UK is not going to separate from the EU and even more so, not going to separate from the European Convention and, given that, start thinking about constructive ways to make things better “for you lot” on the island across the North Sea.
May 26, 2013
I think this extract from Christopher Booker in today’s Telegraph is pertinent to this topic and the way our democracy is being subverted:
“As I recounted here on February 9, the drive to get same-sex marriage into law was masterminded from 2010 onwards by an alliance between Theresa May, the Conservative Home Secretary, Lynne Featherstone, the Lib Dem equalities minister, and gay pressure groups, led by one called Equal Love. They pushed the issue forward, not in Westminster, but through the Council of Europe, culminating in March last year with a day-long “secret conference” chaired by Miss Featherstone in Strasbourg. With the public excluded for the first time in the Council’s history, it was here that – with the active support of Sir Nicolas Bratza, the British president of the European Court of Human Rights (ECHR) – a deadline was set for their planned coup of June 2013. If, by this date, “several countries” had managed to put gay marriage into law, Sir Nicolas pledged that his court would then declare same-sex marriage to be a Europe-wide human right. Hence the recent rush for several countries to oblige, including France, where gay marriage has brought thousands of protesters out on to the streets.”
May 26, 2013
I thought Theresa May wanted to be in Parliament to help govern this country; that was always the impression she gave to us punters when she stood for election here; so now it turns out that she prefers to alienate the powers we lent to her and hand over part of the government of the country to the Council of Europe?
May 26, 2013
Denis,
Hundreds of MPs have happily betrayed us in that way since the arch betrayer, Heath, took us into this anti-democratic foreign organisation under the guise of it being a trading orgainisation whilst knowing and concealing its true political purpose from the majority of the UK electorate.
May 26, 2013
“The general view was that the UK like all other signatories to the Convention had to obey the international law, and that law would be settled by international judges. Their decisions might be at variance with the wishes of the UK voters as expressed by their elected representatives. I was told that the inconvenience of losing a few court cases was offset by the advantage that the Convention would do more good in some countries with lower legal and democratic standards than our own.”
Nobody who was truly committed to our national democracy would ever tolerate its degradation in an attempt to improve democracy in other countries, whether or not any such attempt was likely to be successful; they would not regard the purported legal subordination of our national Parliament to “international judges” as an “inconvenience”, but as a direct attack on our national democracy; those who advocate that view are declaring themselves to be enemies of our national democracy, and thereby enemies of our nation; if we had properly updated our laws on treason, and were determined on the rigorous application of those amended treason laws rather than permitting wide freedom of debate, then potentially some of the leaders of this treasonable conspiracy could be facing trial, and if found guilty their designs against our national democracy would bring well-deserved and salutory punishment on their heads, years of imprisonment; it is only because as a nation we place such a high value on individual liberty and freedom of expression that they are allowed to get away with their attempts to undermine and destroy the very system which protects them; as for their many disciples who have wormed their way into our Parliament, one could perhaps imagine Colonel Pride coming back and conducting another purge, but the practical course of action would be to amend the Oath of Allegiance so that all the members of both Houses of Parliament could choose whether to solemnly swear that they were committed to maintaining its legal supremacy within the United Kingdom, or to refuse to take that amended Oath and get out of our Parliament so they could be replaced by patriots.
May 27, 2013
How is it treason for foreign judges to point out that the UK is wrong on an issue? It’s nothing but arrogance to assume that because these judges are disagreeing with the UK that these judges are always wrong.
May 28, 2013
I didn’t say that it should be treason for foreign judges, or for any other foreigners, none of whom owe a duty of allegiance to this country.
May 26, 2013
The enemies of British democracy like to remind us that the European Convention on Human Rights was written by British lawyers, as if that provides some kind of guarantee that its contents must be acceptable to the British people.
Obviously that can provide no such a guarantee for anything in the original Convention itself, and in any case there has since been a succession of protocols to the Convention; but crucially of course the accumulated case law of the European Court of Human Rights was not written by British lawyers just after the war but instead has evolved over the subsequent decades as increasingly weird decisions have been delivered on increasingly tenuous and convoluted grounds, and it was those same British lawyers who erroneously wrote into the Convention what appears to have originally been its Article 53, according to this:
http://www.hri.org/docs/ECHR50.html
“The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.”
and is now its Article 46(1) on page 24 here:
http://www.echr.coe.int/Documents/Convention_ENG.pdf
“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”
I have seen some politicians claiming that originally the judgements of the Court were not binding, and that it was either Wilson or Blair who allowed them to become binding; but as far I can see it was the British lawyers who wrote the original Convention who had so little respect for our national sovereignty and democracy that they put in that Article 53, and it was members of our Parliament back in 1950/1 who were foolish enough to give that hostage to fortune by allowing it to be ratified.
Reply The big change occurred when they established a right of individual appeal from the UK Supreme Court to the ECHR
May 26, 2013
I can’t agree, JR.
In the absence of what was Article 53, now Article 46(1), people’s exercise of the right of individual appeal to Strasbourg might have become mightily tiresome for the government but it would never have challenged the legal supremacy of our Parliament.
Ministers could have reported an adverse opinion of the court to MPs, and MPs could have considered whether or not the court had a valid point and whether or not they should change our law to reflect that opinion.
But with Article 46(1) MPs can be told that they must change our law, because the court has said so and the UK has agreed to abide by all its decisions.
That is why MPs should insist that the UK must derogate from that Article, stating openly and honestly that the UK no longer consents to be bound by whatever the latest crackpot decision may be that the Strasbourg “judges” hand down from their ivory tower, and will treat all of their decisions as no more than their opinions with no legal weight.
May 27, 2013
Just because foreign judges disagree with the UK doesn’t automatically make what they say wrong simply because they are foreign. Such xenophobic attitudes will not benefit the UK.
May 28, 2013
I didn’t say that what they said was automatically wrong – although it very often is – and I actually said that MPs could consider whether or not the court had a valid point – but whatever they say it should not be legally binding on the UK.
May 26, 2013
And its the lawyers who are the problem.
They have run rings round the intent. All paid for by the mugs that Parliament taps to pay them.
It’s your pension they have spent.
May 26, 2013
Indeed.
May 27, 2013
The right of individual appeal was implemented because it made cases involving human rights much cheaper to resolve. Mainly because appealing from the High Court directly to the ECHR was quicker than than going to the High Court, appealing the decision to the Court of Appeal, appealing the decision to the House of Lords (as it was then known), and then going to the ECHR.
May 26, 2013
The European Convention on Human Rights has several protocols, which amend the convention’s framework. So it’s inaccurate to say that it cannot be changed with changing times.
https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights#Convention_protocols
In other news a Conservative consultation document asked members whether there should be limit on the number of times people can visit their GP. It’s no one the Conservatives are seen as attacking the sick and disabled when they do things like this.
http://www.independent.co.uk/life-style/health-and-families/health-news/cap-on-number-of-gp-visits-being-considered-by-tories-8632396.html
May 26, 2013
We only need Treaty/International laws to deal with international matters. The laws we have within our own country, applicable to those within the country should be the concern of our citizens and parliament and not some foreign organisation. Other countries object to interference in their “internal affairs”, we should do the same.
Incidentally, perhaps you could explain why terrorists and those who incite terror and are British subjects are not charged with treason or incitement to treason? Or does the ECHR prevent this too?
May 27, 2013
It’s only treason if you do one of the following:
– compassing the death of the sovereign, or of the sovereign’s wife or eldest son and heir
– violating the sovereign’s wife, or the sovereign’s eldest unmarried daughter, or the sovereign’s eldest son’s wife
– levying war against the sovereign in the realm
– adhering to the sovereign’s enemies, giving them aid and comfort, in the realm or elsewhere
– killing the King’s Chancellor, Treasurer or Justices
– attempting to hinder the succession to the throne under the Bill of Rights 1689 and the Act of Settlement 1701
So as long as terrorists don’t attack the sovereign or their family they can’t be tried for treason.
June 2, 2013
Arson in royal dockyards was among the last offences that were punishable by execution in the United Kingdom. It remained a capital offence even after the death penalty was abolished for murder in 1965. In a speech in the House of Lords in 1998, Lord Goodhart stated that this offence disappeared from the list of capital crimes in 1971 “without, so far as I am aware, either comment or concern.”
Something to be aware of if you find yourself doing a bit of welding in a shipyard.
May 26, 2013
The whole idea of EU law, based on a Treaty with foreigners, is anathema to me. Every time I hear on the news or read in a paper “By a decision of the European Court ………..” my hackles rise and my teeth start grinding. I used to tell myself that it was necessary in order to belong to a Customs Union with internal free trade. Why not just have world wide free trade, no import tariffs (overt or covert) and no special Treaties? Or have I missed something.
May 26, 2013
To compare Treaty Law and Statute Law is to miss the point.
The Common Law, as its name implies, is common to all estates of the Realm, and is to be applied in conformity with the English Constitution. That Constitution, as set out in writing, consists of agreements between the Monarch and the People, and is for all time.
Some parts of the Constitution have subsequently been incorporated into Statutes. Such Statutes can be rescinded, and some have been, but that does not mean that Parliament is Sovereign, for the agreements in the Constitution predate any Statute.
Treaty Law or E.C.H.R. Law has no force in this Realm, for it is contrary to the English Constitution and is therefore unlawful. The Treaties which have led to membership of the E.U. are likewise unlawful, for they have been signed by British political leaders (in the case of Edward Heath, contrary to legal advice) purporting to share the Sovereignty which they claim but which they do not own. They have deceived a careless or ignorant electorate into accepting their actions.
Now, it is time to return to the Rule of Law according to our Constitution.
May 26, 2013
I would like to read those “agreements between the Monarch and the People”, so maybe you could point me in their direction?
May 26, 2013
As you must know, in light of your challenge, the British Constitution agreements are a collection of documents and not a single codified document , but that is not to say that the laws do not exist and are not written. You would have many documents to read starting with the Magna Carta.
May 27, 2013
I think he means these:
http://www.thebcgroup.org.uk/british-constitution
May 28, 2013
Thanks.
I’ve actually seen that before and it has many flaws.
As one simple example, it is no use citing the Coronation Oath without mentioning that at least since 1688 its wording has been specified by statute passed by Parliament.
May 27, 2013
I replied posting a link the British Constitution Group’s website listing the documents you were asking about. Mr Redwood saw fit not to publish my comment so perhaps you would care to Google it.
May 28, 2013
Grovelling apologies Mr Redwood. My comment was obviously still awaiting moderation, but didn’t show up when I revisited.
May 26, 2013
It’s not even sacrosanct in the EU.
Freedom of movement of people goods, services and capital.
Unless you’re Cypriot.
May 26, 2013
I believe Common Law means of the people and has been built up over thousands of years. It is a true Rule of Law in that once a principle is declared as law it is consistently applied. Our Constitution is built on the Rule of Law and is politically blind rather than having been imposed on us by a political administration as all other countries’ Constitution is.
But of course that is now not the case having had the EU “laws” imposed on us which are all inferior to our tried and tested Common Law which includes Habeas Corpus – innocent until proven guilty. The EU likes to think we are all guilty and we have to prove our innocence.
May 27, 2013
The Common Law, as its name implies, is common to all estates of the Realm, and is to be applied in conformity with the English Constitution.
The common law is named “common law” because judges create case law that is binding on the lower courts, not because it applies to all people.
That Constitution, as set out in writing, consists of agreements between the Monarch and the People, and is for all time.
No such written document exists. The UK’s constitution is largely unwritten.
Treaty Law or E.C.H.R. Law has no force in this Realm, for it is contrary to the English Constitution and is therefore unlawful.
The UK cannot ignore human rights or international obligations simply because you don’t like them.
Now, it is time to return to the Rule of Law according to our Constitution.
Would you mind telling us where we can find a written copy of this Constitution so that everyone can determine what we need to do to comply with it.
May 26, 2013
For the purpose of clarity I think it worth pointing out (as I’m sure you know) that the ECHR has no connection with the EU. It was drafted by the Council of Europe — not an EU body. All 47 Council of Europe member states are party to the Convention.
Leaving the EU will have no effect on the UK’s status in relation to the ECHR.
May 26, 2013
The Lisbon Treaty requires all member states to follow the EHCR, so they are effectively linked, and closely.
May 26, 2013
Apologies, ECHR, of course.
May 26, 2013
For an exceptionally wise alternative perspective on this I strongly recommend Mary Robinson’s autobiography.
May 26, 2013
You make it sound so easy to change laws if we don’t like them , but yes statute law can be overturned or updated , whereas European law is something many grey suits and miles away, where most things are in reverse and we have to work hard to drive the truth forward.
I am just watching the French Open after a lovely morning in the garden. What a shame it would be for France to lose it’s French essence to the EU. It still is abroad and that place where we like to learn the language and have second homes if we are lucky. We still look forward to the march to the local shop for French batons and L’ Angoustine.
We need our difference for a sense of identity. Laws are based on fairness and justice. I am sure J Rawls was mentioned at Middlesex. English laws do evolve quickly and person rights , which we seem to be ahead with ,figure, and importantly, highly on the social agenda. The EU has a reputation for liberty ,yet there are so many migrants from Europe who want to escape their Countries..it makes me wonder. Ah well, will watch Federer now.
May 26, 2013
It doesn’t work.
1 You enact legistlation you kept secret. e.g. Gay marriage. Whilst I’m in favour its completely wrong that you’re enacting primarily legislation you kept secret. That is dictatorship by a small minority.
2. Getting rid of MPs. How? We vote against you but we have to vote for someone that’s unacceptable to get rid of you? That’s not democracy. The subsequent winner then claims a mandate for all sorts of things we don’t want. We have to vote for the unacceptable to get rid of another unacceptable.
May 26, 2013
I know Britain was the first to sign the Human Rights in 1950s but I presume nobody mentioned our Bill of Rights in your debate which is out of reach of politicians (though we are constantly told they have repealed it) and is a great deal more fair than anything the EU can dream up.
Shame on you Mr. Redwood for not arguing its case.
May 27, 2013
Better still common law.
May 27, 2013
The principle that the judiciary can, through their power to interpret the law, over-ride the role of legislators is a dangerous one if applied to widely, but when narrowly restricted to areas (e.g. human rights, or arbitration in the WTO) where there is overwhelming consensus that the principle (human rights, free trade, etc.) that the court was set up to defend is a universal good that should be protected even from a short-term majority in a parliament, particularly in countries with histories of state abuse of power.
The problem with the ECHR is not the principle of judiciary over-riding (short-term) national majorities, but rather the judicial activism of that court in seeking to expand its remit beyond the limited arena in which rights should be sacrosanct from even a parliamentary majority into disputed areas of politics that the original treaty signatories would never have envisaged and for which there is no near-universal consensus. The situation with the EU is however very different in that its institutions, although set up originally with a partial intent to protect the single market from democratic pressures that might lead to protectionism, have long-since moved on from Monnet’s starting point into legislating in all areas of policy, including issues for which there is no near-universal consensus, i.e. all the contested areas of politics that are best decided by majorities after election contests. Nor can these ever be transferred to pan-European majority decision-making because such contests depend upon there being a shared language in which to contest the arguments, a shared political culture to judge them by, and the absence of factions who support measures that are in their own self-interest irrespective of their negative impact on other countries. Without these pre-requisites decision-making by majority at European level is no substitute for majoritorian politics at national-level, leading instead “Eurovision song-contest voting” in which countries vote not on the merits of a case, but on the basis of short-term alliances and deals which leads directly to dysfunctional policy-making and poorer policy outcomes than national institutions produce.
The corrective to ECHR judicial activism is not to abolish it but rather to tightly circumscribe the activism of its judges by removing errant judges and replacing them with a cadre of new judges who are aware that their legitimate institutional role in defending important human rights will be undermined unless they show a collective responsibility in restricting the expansion of their role into contested areas of politics. There is however no corrective for the EU other than to remove its power because the vast range of areas in which it now has legislative power (except perhaps in the single market) inherently overlaps with the proper domain of decision-making by majority which should only exist within nation-states where there is a body of people with a common-sense of their own interests and who agree to live under the principle that they will follow the decisions of their own majority (but not that of majorities in other countries).
I often feel the Conservative party leadership (and especially its would-be leaders) feel that taking on the ECHR is politically easier than taking on the EU, and so attack that court or talk about withdrawing from it as a surrogate for the battle they should be fighting, which is to repatriate all law-making powers from the EU beyond non-politically salient matters of single-market product regulations.
May 27, 2013
International Law is what we cannot live without and it is all very well if all countries agree to abide by it. If they do not agree then it is useless. We have got Parliamentary Law in Westminster and we had a good constitution only for EU to impose restrictions and render our Parliamentary Law useless as it cannot work in parts and not whole. We do need a very very big treaty to keep our Parliamentary Law so that we do not have interference from EU meddling in Westminster.