We're at the mercy of muddled extreme right wing thinkers

We're at the mercy of muddled extreme right wing thinkers

The nut job in this case is David Green, from the so-called think tank Silly Arse (or Civitas as he calls it).

Yesterday Tim Blackwell sent me a Direct Message via Twitter to ask whether I had seen the garbage I have republished below...

We’re at the muddled mercy of European judges

A bill of rights is vital to protect UK sovereignty which finds itself under severe threat from the people in the European halls of power

David Green Published: 27 February 2011

The European Court of Human Rights is encroaching further into British life (Joanna Leguerre)

For a long time the European Convention on Human Rights was a respected statement of the fundamental principles of a civilised society. Now it is little more than a rationale for the politician-judges of the European Court of Human Rights to impose their personal preferences on everyone else. Supporters of the new judicial absolutism claim to speak with the authority of the European convention and never tire of mentioning that Churchill was an enthusiast, but they ignore the fact that the court’s recent decision on prisoner votes reversed the meaning of the document we signed.

The original working papers on the Council of Europe’s website show that the wording of the first draft was amended to allow Britain to continue its policy of withholding the vote from imprisoned criminals. Having themselves ignored the meaning of the original document, supporters of the court brazenly accuse the British government of failing to respect human rights. Some, such as Shami Chakrabarti of Liberty, claim that the convention “protects us all from the whims of politicians”. In truth we need to protect ourselves from the whims of the European judges who are a lot less accountable than our own MPs.

Earlier generations fought a civil war, executed a deceitful king in 1649 and expelled another in 1688 to establish the principle that the people themselves should make the laws they live by. Since passing the Bill of Rights of 1689, we have placed our faith in open discussion, a free press and the possibility of throwing a government out merely by passing a vote of no confidence in it in the House of Commons. The Americans opted for a system that gave power to a Supreme Court, but they were to discover that judges were perfectly capable of reversing the meaning of the original constitution.

In 1857, the US Supreme Court ruled that Dred Scott, a slave who was seeking freedom from his owner, had no right to sue an American citizen.

Indeed, no slave could be a citizen of the United States and bring a case before its courts. Fifty years earlier, in 1807, the British parliament had abolished the slave trade after a long popular campaign, suggesting that perhaps the “whims of politicians” can be a better safeguard for human rights than a written constitution enforced by all-powerful judges.

In order to reassert our right to make our own laws, we do not need to renounce the European convention. We could remain signatories and treat it as a useful moral code, as we did until we passed the Human Rights Act in 1998. The convention contains no enforcement powers; there is only a procedure for “friendly settlement” among members of the Council of Europe.

A new bill of rights should reaffirm the constitutional settlement of 1689. Parliament is sovereign. The executive is no longer the king but the ministers drawn from parliament. They hold office only so long as they command the confidence of the house. The whole government can be removed, as I have said, if the House of Commons passes a vote of no confidence. There is no need for another civil war and no need for the mass demonstrations of the kind we see today in the Middle East.

Parliament’s legitimacy as the final power in the land depends on the support of the majority. To ensure consent, elections must be held regularly and the crown can dissolve parliament at any time, so long as an immediate election is called to test opinion. Since the Act of Settlement of 1701, judges have been appointed by the crown but can be removed by a vote of both houses of parliament. The power has been used only once but it was reaffirmed in the 2005 Constitutional Reform Act. It reminds judges that they are the agents of parliament in holding the executive to account.

The greatest interpreter of our constitution, AV Dicey, showed that the electorate is in fact the sovereign of England. The whole people act through a “supreme legislature” whose conduct is regulated by understandings that secure the conformity of parliament to the will of the nation.

Under the Westminster system, because the members of the government are normally MPs and subject to removal by a majority in the Commons, it is easy to lose sight of the vital distinction between the executive and legislature. But when judges review the decisions of the government and find them unlawful, they are acting on behalf of parliament. They are overruling the executive, not the elected legislature. Indeed, from time to time, parliament has overruled the courts by passing acts of indemnity.

Above all, a bill of rights should affirm that no decision of the European court has any authority unless it has been discussed and approved by parliament. Without express parliamentary approval, European decisions should be seen as no more than moral guidance that our public authorities, including the courts, can take into account as they think best.

David Green is director of Civitas

(Source: The Sunday Times, 27 February 2011, (£)).

Comment: David Green's pathetic argument appears to be that the UK is at the mercy of muddled thinking by judges of the European Court of Human Rights. His solution is that the UK needs to pass a UK Bill of Rights, to protect UK sovereignty from the interference of Johnny Foreigner. Let us examine David Green's pathetic argument and analyse it and expose it for what it is. That is, A Big Lie.

"For a long time the European Convention on Human Rights was a respected statement of the fundamental principles of a civilised society. Now it is little more than a rationale for the politician-judges of the European Court of Human Rights to impose their personal preferences on everyone else. Supporters of the new judicial absolutism claim to speak with the authority of the European convention and never tire of mentioning that Churchill was an enthusiast, but they ignore the fact that the court’s recent decision on prisoner votes reversed the meaning of the document we signed".

Three weeks is a long time in politics for Civitas because above the think tank attacks the Convention and below it praises the Convention! Double-Speak from an organisation with double standards!

"Drafted in the shadow of the atrocities committed during the Second World War, the European Convention is a sound abstract statement of the need to protect human rights and freedoms. Britain was the first country to ratify the Convention, and significantly influenced its content and scope. Even now, over sixty years later, the broadly drafted principles continue to resonate with our modern-day political and legal priorities".

In 1910, Winston Churchill said:

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country".

If the Convention "was a respected statement of the fundamental principles of a civilised society", why was it not incorporated into domestic law until 50 years after the UK ratified the Convention? Another 10 years have passed and the UK is still 60 years behind the civilised countries of Europe which incorporated the Convention into their domestic laws from the outset. It would appear that Parliament, which is supposed to represent the electorate, decided that the electorate was not fit to benefit from the minimum standard of human rights enjoyed by the rest of Europe.

It is ridiculous to claim that "the politician-judges of the European Court of Human Rights". The judges are independent of the politicians in Parliamentary Assembly of the Council of Europe. Nor do they impose their personal preferences on everybody else. As I have just pointed out, it was the personal preferences of MPs in Parliament not to give the electorate the minimum standard of human rights.

It is ridiculous to speak of "the new judicial absolutism", when the ECtHR was created in 1959 and the present format established in November 1998. The only thing that is new is the ratification of Protocol 14, in February 2010, which gave the Court new powers to deal with Member States which ignore the Articles of the Convention and/or decisions of the Court. The evidence is that the UK has ignored fully complying with Hirst v UK (No2) for over 5 years. It is laughable that David Green argues "...but they ignore the fact that the court’s recent decision on prisoner votes reversed the meaning of the document we signed". Given the the Court relied upon Article 3 of the First Protocol of the Convention in deciding the case, and followed its own previous case-law, there was no departure from let alone overturning of the Convention. The truth is that the UK does not like being found guilty of a human rights violation, and does not like the Court decision. However, that does not make the Court decision wrong. It remains the case that the UK is in the wrong.

"The original working papers on the Council of Europe’s website show that the wording of the first draft was amended to allow Britain to continue its policy of withholding the vote from imprisoned criminals. Having themselves ignored the meaning of the original document, supporters of the court brazenly accuse the British government of failing to respect human rights. Some, such as Shami Chakrabarti of Liberty, claim that the convention “protects us all from the whims of politicians”. In truth we need to protect ourselves from the whims of the European judges who are a lot less accountable than our own MPs".

I have read the original Prepartory work on Article 3 of Protocol No1, and the text went through various amendments before being finally agreed upon. It is untruthful for David Green to claim that "the first draft was amended to allow Britain to continue its policy of withholding the vote from imprisoned criminals". Nowhere was prisoners even mentioned. There is a reference to the term "universal suffrage" and a reference that in the UK we only had "general suffrage". We still had the British Empire at that time which included the dominions, therefore the reluctance to extend the franchise may have had something to do with that and not prisoners at all. Given that the actual text of Article 3 of Protocol No1 is contained within the decision of Hirst v UK (No2), the Court cannot be accused of having ignored its meaning. The Court did state that in this day and age the principle of universal suffrage applies. The law is a 'living instrument' it develops over time and is not static. It is this which the UK really objects to; being dragged screaming and shouting into the 21st century! The UK has failed to respect human rights. Shami Chakrabarti is right about the purpose of the Convention. If the UK wants to protect itself from the findings of guilt by the ECtHR judges, then the UK only has to honour its obligations which we signed up to. If our MPs are so accountable, how come they have got away with fiddling their expenses for so long they think they had a right to steal from the public purse?

"Earlier generations fought a civil war, executed a deceitful king in 1649 and expelled another in 1688 to establish the principle that the people themselves should make the laws they live by. Since passing the Bill of Rights of 1689, we have placed our faith in open discussion, a free press and the possibility of throwing a government out merely by passing a vote of no confidence in it in the House of Commons. The Americans opted for a system that gave power to a Supreme Court, but they were to discover that judges were perfectly capable of reversing the meaning of the original constitution".

It is neither historically nor etymologically correct to claim that we have had a civil war in this country. The execution of Charles the First was a battle between Parliament and the King, and James the II was expelled by Parliament, in both cases the issue was not about the "people themselves should make the laws they live by" but the barons and ruling class making the laws. The Bill of Rights 1689 was not about the people's rights, but about the rights of the barons over the King. We do have open discussion up to a point. I would not claim that in the UK we have a "free press". I don't have confidence in a vote of no confidence throwing out a government with a large majority. I too would opt for the power to be given to the Supreme Court to strike down Acts of Parliament. Sometimes ancient documents do not cover present circumstances and the judges merely update original constitutions. It is ridiculous to suggest "that perhaps the “whims of politicians” can be a better safeguard for human rights than a written constitution enforced by all-powerful judges". The pain of confinement of prisoners has regularly been increased on the whim of a politician, therefore, this Executive abuse needs to be guarded against by the courts.

"In order to reassert our right to make our own laws, we do not need to renounce the European convention. We could remain signatories and treat it as a useful moral code, as we did until we passed the Human Rights Act in 1998. The convention contains no enforcement powers; there is only a procedure for “friendly settlement” among members of the Council of Europe".

Given that we already have the power to make our own laws, it is pointless reasserting this right. Only a totalitarian regime would renounce the Convention. David Green shows a distinct ignorance to both international and European law if he believes that the UK can remain signatories to but only accept the Convention "as a useful moral code", which is neither binding nor needs to be abided by. It beggars belief that he is suggesting that we now go backwards in time and pretend we did not pass the HRA 1998. As just said David Green is ignorant of international and European law, to claim that "The convention contains no enforcement powers; there is only a procedure for “friendly settlement” among members of the Council of Europe". He needs to read the Treaty of London 1949 (Statute of the Council of Europe), to see that there are enforcement powers and tough sanctions if "friendly settlement" is not reached.

We have a Human Rights Act so I see no need for a new Bill of Rights to reaffirm the position in the constitutional settlement of 1689. However, the HRA does need to be amended and strengthened. It is ridiculous to claim that "when judges review the decisions of the government and find them unlawful, they are acting on behalf of parliament" because they are acting as part of an independent Judiciary. Equally ridiculous is the suggestion that "Above all, a bill of rights should affirm that no decision of the European court has any authority unless it has been discussed and approved by parliament". This view is contrary to the Convention which quite clearly states that the decision of the Court is final. David Green is absurdly suggesting that the UK should decide itself whether it is breaking human rights law. He is not suggesting we should live in a democracy, but is instead advocating we should live under a toalitarian regime!