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Saturday, December 17, 2011

Lord Irvine of Lairg: Incompetent or corrupt?

Lord Irvine of Lairg: Incompetent or corrupt?

A BRITISH INTERPRETATION OF CONVENTION RIGHTS by Lord Irvine of Lairg. A lecture delivered under the auspices of the Bingham Centre hosted by UCL’s Judicial Institute at 6pm on Wednesday, 14 December 2011.

"The hostility towards human rights and the Human Rights Act 1998 (“the HRA”) within some sections of the press, and their very mixed record of reporting on these issues, impels me, for the avoidance of any possible misunderstanding, to reaffirm my unswerving support both for the international system of human rights protection that the European Convention on Human Rights (“the ECHR”) provides and for the provisions of the HRA under which our own Judges protect those rights in domestic law".

I agree with the observation in relation to some sections of the media, and would add that some politicians have behaved just as badly.

Lord Irvine of Lairg claims to both support the ECHR and HRA, but fails to take into account firstly that the ECHR is but a document listing human rights and that it does not in itself offer human rights protection, and secondly that the HRA is in itself incompatible with the ECHR.

It is the responsibility of Member States of the Council of Europe to guarantee the human rights listed under the ECHR. Therefore the CofE requires Member States to incorporate all of the ECHR into domestic law. Whilst the UK has incorporated most of the ECHR into domestic law via the HRA, the UK has failed in its international obligations by omitting Articles 1 and 13.

Article 1 – Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Article 13 – Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Given that Lord Irvine is described as the architect of the Human Rights Act, surely he is guilty of leaving out these two cornerstones of the structure and thereby weakening it?

Bearing in mind that the UK ratified the ECHR and agreed to abide by the ECHR and decisions of the European Court of Human Rights to which the UK is a party, it beggars belief that the UK's obligation to respect human rights does not form part of domestic law, and that the human right to an effective remedy for human rights breach does not exist at national level. Lord Irvine is at best guilty of incompetence or at worst corruption.

Probably the highlight of Irvine's period in office was the incorporation of the European Convention on Human Rights into United Kingdom law. Irvine devised a measure to maintain the supremacy of Parliament while allowing judges to declare Acts of Parliament not to be in compliance with the Convention.

My accusation is that Lord Irvine sacrificed our human rights in favour of the doctrine of the supremacy of Parliament. In spite of his claim of unswerving support for the ECHR, the truth is he unswervingly supports the supremacy of Parliament. The problem that he has conveniently ignored is that European law does not recognise the British concept of parliamentary supremacy...Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process in the American sense (that is, a mechanism for protecting the human rights of individuals from being arbitrarily infringed by the government).

Supporters of the supremacy of Parliament believe that the doctrine is threatened by the UK being a Member State of the Council of Europe and European Union. Sovereignty of the people and not supremacy of Parliament is the guiding principle of the institutions in Europe. Lord Irvine fails to address this obvious conflict in his lecture to the UK Supreme Court. With such obvious bias being displayed by Lord Irvine, he should not be lecturing anybody on how to conduct themselves.

"This Lecture will invite our Supreme Court to re-assess all its previous statements about the stance it should adopt in relation to the jurisprudence of the ECHR. My objectives are:
(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.

Section 2(1) of the HRA directs the domestic Courts how they are to treat decisions of the Strasbourg Court when interpreting and giving effect to the ‘Convention rights’ domestically. This provision is fundamental to the pivotal new relationships which the Act establishes between our domestic Courts, Parliament and the ECHR. A proper understanding of what the carefully chosen language of s.2(1) requires is essential to an appreciation of the Constitutional nature of the HRA and the adjudicative task which our Courts perform under the Act".

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