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Wednesday, October 26, 2011

UKSC cries after being caught with its hands in the cookie jar!

UKSC cries after being caught with its hands in the cookie jar!

UK supreme court judges air concerns over having to follow Europe's lead

Rulings from Strasbourg human rights court 'sometimes too narrow' and interpretations are disputed


Given that the UK Supreme Court is subservient to Parliament, it is a mockery to call it supreme.

Under European law there is the separation of powers, providing checks and balances with the 3 arms of the State to prevent abuse of power, in the UK we only have a fusion of powers hence we get abuse of powers.

In Hirst v UK (No2) within the UK part of the case is the 3 arms of the State; Executive, Parliament and Judiciary. As the UKSC forms part of the Judiciary, it must accept that it is just as guilty for the human rights violation identified in Hirst No2 as the Executive and Parliament.

The Supreme Court of the Russian Federation stated as follows:

The Convention on Human Rights and Fundamental Freedoms has a mechanism of its own which includes a compulsory jurisdiction of the European Court on Human Rights and a systematic monitoring over the execution of the decisions of the Court by the Committee of Ministers of the Council of Europe. In accordance with paragraph 1 of Article 46 of the Convention these decisions with regard to the Russian Federation adopted finally shall be binding on all State bodies of the Russian Federation including the courts. The implementation of the decisions related to the Russian Federation presumes, if necessary, the obligation on the part of the State to take measures of a private nature aimed at eliminating violation of human rights stipulated by the Convention and the impact of these violations on the applicant as well as measures of a general nature to prevent repetition of such violations. The courts within their scope of competence should act so as to ensure the implementation of obligations of the State stemming from the participation of the Russian Federation in the Convention on Protection of Human Rights and Fundamental Freedoms.

Note the binding nature upon all state bodies including the courts.

Why should a guilty party, the UKSC, not follow the ECtHR’s decisions? It beggars belief that the UKSC is arguing that the losing party should not be bound by the Court’s decision. Moreover, that the UKSC wants to be judge, jury and executioner in its own cause. The Convention was drafted to prevent dictatorships and the UKSC is crying because it is not allowed to become a authoritarian or totalitarian regime. Methinks that the UKSC doth protesteth too much!

For the UKSC to get legitimacy it must refuse to bow down to the doctrine of the sovereignty of Parliament. Otherwise we must have a human rights court and a constitutional court.

It may well be that the UKSC will get a chance to redeem itself. That is, if Hirst v Executive, Parliament and Judiciary (case no.1KH04685) goes all the way.

Given that both the MR and LCJ have spoken out against being inferior to the ECtHR, the case is destined for the CJEU, ECtHR or UKSC.

There is a strong human rights lobby pushing for the CJEU to become the next venue in Europe to be the the ultimate guardian of human rights in Europe. Other contenders are the ECtHR and national constitutional courts. As we neither have human rights courts nor constitutional courts in the UK, and because the UKSC is fettered by Parliament it cannot be trusted to be the guardian of peoples human rights. To be a player in Europe the UK can no longer stand on the sideline but must play by the rules of the game and play on the pitch.

Europe has concerns about the UK’s status as a failing State with its systemic failures. The structure is at fault. The UK does not guarantee all the human rights under the Convention, and fails to provide an effective remedy by a national authority for human rights violations.

For the UKSC to be taken seriously in Europe it needs to address the problem of the systemic failure. Neither the Executive nor Parliament is addressing the problem. That only leaves the UKSC to grasp the nettle. I suspect that the corruption runs too deep or there is a lack of courage. Either way the UKSC has no legitimacy to take the lead away from Europe, it must be content to be a follower.

Europe is providing an opportunity to the UK with the subsidiarity principle. However, both the Secretary of State for Justice and Attorney General have misinterpreted this to mean that Europe should let the UK abuse human rights unmolested. The only way Europe will allow this is for the UK to withdraw from the Council of Europe and European Union. Kenneth Clarke and Dominic Grieve have stated that the UK has no intention of doing this. Therefore, there is scope for the UKSC to make a legal declaration that it is the responsibility of all 3 arms of the State to guarantee the human rights under the Convention and remedy any breach of human rights.

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