In most respects, the question of whether the UK should remain in the EU is a rather minor one compared with dealing with the European Court of Human Rights which like Brussels, as an institution seeks always to maintain and expand its reach at every opportunity. In reality the ECHR will be totally ignored by any tin pot dictator that comes to power, like policing, Courts of any kind rely on the support of their ‘public’ to function.
However in dealing with the disaster that was the Human Rights Act introduced under the Blair Government, can lead to opening a whole can of worms that can make significant rapid progress very difficult. I would suggest that the reasons are worth looking into.
My primary purpose in maintaining this blog has always been to have my own “thinking space” where I can develop my own ideas and opinions about any issue that takes my fancy. However what is always ‘magical’ to me is this amazing tool called the “Web” where a wealth of information is to be found. Now obviously, it would be foolish to take just one link as some kind of ‘Gospel’, you always need to cross reference so below some references that you might well find highly useful.
The first was my starting point, an article on the BBC website about the Conservative pledge to repeal the Human Rights Act. Its a good piece and starts to map out some of the difficulties in doing so but also points to something I consider very “dark” indeed, the threat of a Written Constitution !
The other references are about English/Welsh Law and well worth reading, I have put the “duke” reference first only because of its wonderful cross references and links designed mainly for students studying law, you can spend hours here ! However, each provides excellent resources for understanding the historical/current position and from there, the basis to form your own opinions.
Replacing the Human Rights Act
From here on we move into my opinions or views of the problems and I am happy to be corrected on matters of fact or just plain disagreed with on the conclusions I draw.
To my mind one of the most brilliant things about English Law is that in simple terms, any activity which is not specifically forbidden is therefore legal activity providing it does not transgress something as basic as murder which requires no specific legislation as such because it is obviously wrong in any society. Now obviously in an age of the perpetual busybody where everything including the Organ Grinder’s Monkey has “inalienable rights”, a Facebook page, a Twitter account and probably an Instagram and Linkedin one too, this is not a fashionable thing to support but perhaps it should be.
The other notable feature or omission is that there is no single document entitled “The British Constitution” although it exists but documented in many places and has evolved and been modified over time and only as required. This too in my view is a thoroughly good thing and we should do our very best to preserve that despite the UK being only one of three major democracies that don’t have a written constitution the others being New Zealand and Israel.
That the current Human Rights Act should be replaced with something that reflects the “best practices” of international courts including the ECHR but leaves the UK Parliament and therefore the UK Supreme Court as the highest legal authorities within the UK, I think is essential to good governance. I will go further than this and state that if any group of people in the UK, be they lawyers, politicians or just citizens feel that it is neither preferable nor safe for this to be the case then they must acknowledge that in their view, our society has far greater problems than which is the ultimate legislative body and court in the land.
To put this into a proper perspective let us look briefly at something else, democracy. The reason why it takes so long for democracy to establish itself in places where it has not existed before has nothing to do with the difficulties or otherwise of establishing voting stations and counting the ballot, that is the easy bit, even the most despotic dictatorship can manage that. No, it lies in the voters having total faith in the ‘count’ in terms that the ballot was true, fair and not interfered with in any way. In other words, in order to have faith in the outcome, the voters need to have faith first in the ‘institutions’ involved in the electoral process, faith in nameless individuals that they will neither know nor see but will carry out their tasks faithfully.
The Law is no different, in order for the law to be held in high regard and respect several things must happen. Firstly no legislation must be passed by Parliament that is nonsensical and anyway unenforceable. Secondly, the Judiciary should be able to work transparently by interpreting what Parliament meant by passing legislation combined with the pantheon of legal precedent, Courts should never “make laws”.
None of this can be achieved by exporting responsibility for these functions to some European Court because like it or not, all laws have a political context as must be obvious therefore, lawmaking should always be kept close to the elements that create it it, in our case Parliament and the electorate in order for laws to be enforceable. If policing is only by consent, unless under a dictatorship, so too is the rule of law.
Some people who no doubt would describe themselves as ‘forward looking and progressive’ might point out that we are subject to international courts anyway such as being a member of the EU we are subject to the European Court but lets be fair, that is not a proper court of law. It exists to enforce as best it can, the rulings of Brussels on EU member countries but, those rulings have little resemblance to legal principles being based wholly on political wrangling. If Brussels decided that all cars exported from the UK to the rest of the EU had to be painted pink for whatever reason, it can hardly be describe as a fundamental principle of law can it ?
To be honest the other two Courts whilst very important because of their nature are very specific and designed for particular purposes and operate under international consensus as courts for the prosecution of war crimes in one case and to settle legal disputes between nations under the UN in the other. Neither are directly part of the court systems of any particular country.
Which brings me to the European Court of Human Rights. The main problem with any institution of any kind is that once created, like some kind of virus its first order of business will always be its own survival and normally this is done by extending its reach beyond that originally intended “for the best of reasons” always, in this the ECHR is no different. Being an international body it can never be “pure” in its actions and decisions it being subject to manipulation from both within (its own staff) and from without (by the staff’s host country) because it too is subject to politics but at an international level.
The UK needs to distance itself from all this. Most certainly basic principles that are fundamental to the concept of human rights should be followed but much of the froth should be totally ignored because both the Court and its function are probably in need of a total overhaul or is that, “yet another overhaul” ? The main problem that all courts face is that they must always be seen to be even handed in all things giving favour to none but in the case of the ECHR and Russia this is all a not very funny joke that undermines it with other countries. Judge for yourself:
What is delaying the drafting of something to replace the current UK Human Rights Act is apparently, David Cameron wanting to see whether new legislation could include checks and balances on the remit of the EU to interfere in domestic UK matters. Clearly what he has in mind is the ability of the German Constitutional Court in Karlsruhe to ‘question’ whether EU directives contravene Constitutional or the German Basic Law.
Whilst this is understandable, it is probably mistaken and if it leads to a written British Constitution, Very Mistaken, such a thing needs to be avoided at all costs because it is only suitable for ‘new countries’ or countries in ‘new’ situations where there is little other choice because they have no “history” to call upon as guidance. The biggest problem with written constitutions is that they encourage people to live in a time warp because clauses inserted at the time of their creation made sense then but… Decades or centuries down the line they have become totally irrelevant however by now, the whole document has the status of “holy scripture” and is totally resistant to change or, “I will defend it with my last breath…” you get the picture.
Two good examples come from the American Constitution and more recently, that of Myanmar (Burma) concerning who can become President.
The American Constitution was written mainly by people of British stock originally so it was framed with regard to constitutional events that took place in Britain in the past. However they had revolted against not just the Crown but in particular a King of German origins so a clause that debarred “Foreigners” from becoming President (Ruler) and requiring candidates for the Presidency to be American born was quite understandable, at least then. However it can lead to some rather odd things today as in Boris Johnson having been born in the US would be eligible (he has recently renounced his US citizenship) but Arnold Schwarzenegger a former Governor of California wouldn’t because he was born in Austria.
A more recent example comes from Burma where the military junta who drafted a constitution wanted to ensure that Aung San Suu Kyi could never become President so, as she was married to an Englishman and had children abroad, they included the stipulation that if a candidate had foreign born children they were debarred from becoming President. Just how relevant will that be in 50 years time but I bet it won’t get changed !
The other thing of course is that very often for all the fine words and however enlightened the constitution maybe, whether a Stalin or a Putin, the constitution will be totally ignored anyway. The bottom line is as with most things legal, such documents are best avoided at all costs as Scotland may well find if they ever become independent of the UK !
Yes we do need to reassert the supremacy of the UK Parliament and Courts over the ECHR but, we should not even attempt to try and combine that with holding the EU at bay if that means introducing a written constitution. One of our constitutional principles is that no Parliament may bind the hands of another, Acts introduced in one Parliament may easily be repealed in the next given a change of Government, written constitutions run right across that principle.
If reducing the impact of the EU is the objective then we can either force the EU to change or simply leave it, no need for daft pieces of paper, deal with the issue straight on Mr Cameron.