Human Rights

[MrGongGong]

Peanuts - is that really all it cost??? The BBC has just frittered away £100m of public money on the DMI. And another £25m in 'severance pay' to senior managers.

Quite
It's a small price to pay for living in a more ethical society
what IS worrying is that these hard cases will be used as justification for abandoning something that protects us when our joke government can't or will not

[amateur51]

The Human Rights Act says very little about human rights. It simply allows British courts to apply the provisions of the ECHR themselves. The former position was that UK citizens had to exhaust all internal procedures before they could approach the ECHR - something that usually took about seven years. That's all it is.

What May wants to do - perhaps (I do not know) - is withdraw from the ECHR itself because she doesn't like being ruled against. That would be utterly shameful and somewhat dangerous since we (almost uniquely) have no constitutional right to challenge any law or government action. I have already posted a complete list of cases taken to the ECHR from the UK, and it's a bit surprising just how ordinary it is. It make one wonder whether she wants a system in which the government can do as it wants without challenge. If that were to happen, it would give the government more power than any 'democratic' government in the world.

By the way, I rarely see the Guardian.

Neither I suspect does our correspondent - it's not on the top shelf

[ahinton]

She is only making such noises in order to consolidate base support within the Conservative Party. If push came to shove, she wouldn't have the balls. Nothing much to worry about here - just the normal rhetoric of career politicians.

I don't think that there can be any reasonable doubt about that!

[ahinton]

It is clearly absurd that it has taken so long to rid the UK of the vile specimen that is Abu Qatada.

It may be so (and, after all, other people's human rights must be considered here, not jut those of Abu Qatada) but, until and unless it is amended, the law is the law.

The human rights act should not be immune from reform or repeal if it has failed to keep pace with modern realities. May is simply suggesting that it might be time to re-examine it.

Is she really? Can we be so sure of that, especially given that DC himself seemed quite amenable to the idea of its repeal in the run-up to the last General Election until the likes of my MP took him gently to task over the fact that this would have little if any electoral appeal? Of course any law, including this one, should not be immunised against reform, but the notion of its possibly being repealed sends out all the wrong signals in terms of how a government sees fit to treat the citizens of the country under its supposedly democratic charge simply by implying either that there's no such thing as human rights or that, if there is, it need not be - and perhaps be ought not to be - enshrined in legislation. I would be deeply loath to live in a country that had no human rights act; that kind of situation may not bother you but would certainly bother me.

[Roehre]

It may be so (and, after all, other people's human rights must be considered her, not jut those of Abu Qatada) but, until and unless it is amended, the law is the law.....

And it is the British version of that law which causes the bulk of these problems.
One only has to compare the contents with the similar legislation in Germany, France or the Netherlands. The two former have the rights explicitly summed up in that law, in the latter the Rights are defined in the first articles of the Dutch contitution sinds 1983. It is the national law which is taken under scrutiny during appeal in Strasbourg, explaining the difference in outcomes between similar cases from Britain, Germany, France or the Netherlands.

A host of legal problems in Britain are caused by (very) badly conceived and (in case of European directives:) goldplated legislation, passed through Parlement without proper scrutiny and discussion, sometimes only simply rubber stamped even.
[and why takes European-originating law in Britain on average approximately twice as many articles and paragraphs -not to mention explicative texts- as legislation based on identical Brussels directives in Germany or France?]

[ahinton]

And it is the British version of that law which causes the bulk of these problems.
One only has to compare the contents with the similar legislation in Germany, France or the Netherlands. The two former have the rights explicitly summed up in that law, in the latter the Rights are defined in the first articles of the Dutch contitution sinds 1983. It is the national law which is taken under scrutiny during appeal in Strasbourg, explaining the difference in outcomes between similar cases from Britain, Germany, France or the Netherlands.

A host of legal problems in Britain are caused by (very) badly conceived and (in case of European directives:) goldplated legislation, passed through Parlement without proper scrutiny and discussion, sometimes only simply rubber stamped even.

Indeed - and in this particular Mr Pee is right; no law should or even can be so inflexible that it is rendered unamenable to revision in accordance with changing circumstance. The possibility of the abolition of the Human Rights Act, would, however, be not merely a most dangerous prospect guaranteed to undermine the very notion of justice on a vast scale, it would also amount to an admission of defeat by any government sufficiently foolhardy to turn it into reality, as though said government was incapable of amending the Act appropriately and was accordingly prepared to throw in the towel along with the baby and the bathwater.

[Beef Oven]

The Human Rights Act says very little about human rights. It simply allows British courts to apply the provisions of the ECHR themselves. The former position was that UK citizens had to exhaust all internal procedures before they could approach the ECHR - something that usually took about seven years. That's all it is.

What May wants to do - perhaps (I do not know) - is withdraw from the ECHR itself because she doesn't like being ruled against. That would be utterly shameful and somewhat dangerous since we (almost uniquely) have no constitutional right to challenge any law or government action. I have already posted a complete list of cases taken to the ECHR from the UK, and it's a bit surprising just how ordinary it is. It make one wonder whether she wants a system in which the government can do as it wants without challenge. If that were to happen, it would give the government more power than any 'democratic' government in the world.

By the way, I rarely see the Guardian.

Surely the simple answer is to have our own Bill Of Rights. Perhaps that's a bit too modern.

[Barbirollians]

The ECHR is our Bill of Rights - we drafted it .

May is contemptible and an idiot of the first order . The proposition that nobody should be sent to a country to be tried on evidence obtained by torture is self-evident - It makes no difference whether it is Abu Qatada being sent to be tried in Jordan or a British person being sent to such a country .

Moreover, May seems to be keeping quiet that it was only the ECHR that enabled her not to sent Gary McKinnon for trial in the US .

[LeMartinPecheur]

[and why takes European-originating law in Britain on average approximately twice as many articles and paragraphs -not to mention explicative texts- as legislation based on identical Brussels directives in Germany or France?]

A major reason for this wordiness is different principles of interpretation in English law. European law, deriving from Roman law and Napoleon's Code civile, works off the discernible principles and purposes of the law. English law always tended to rely on the literal meaning first, and never mind if this produced nonsensical results or results clearly opposite to the original purposes of the legislation. The task of legislators was to say precisely what they meant.

This approach did have its good side: presumptions that the state had to be absolutely justified by law in any interference in the lives and the property of its citizens so that the scope of any interference had to be clearly spelt out with any imprecision construed in favour of non-interference, and the principle that any imprecision within the definition of an offence must be construed in a way which keeps an offence 'narrow' (in favour of the defendant) rather than 'wide' (as the prosecution tends to prefer).

The arrival of European law has had a big influence however. Judges now have to look more at the purpose of Directives and construe them much less narrowly than of yore. This approach is probably having some effect on the construction of purely UK law too.

But the English Parliamentary draftsman translating EU law still has a tendency to tighten up the EU version, particularly if it requires criminal offences to back it up. The perceived need for old-style tight drafting is still felt much more acutely in criminal offences than in civil provisions.

[Pabmusic]

Surely the simple answer is to have our own Bill Of Rights. Perhaps that's a bit too modern.

We have a Bill of Rights already (1689), although it's not terribly useful in the present discussion. It defines the constitutional status of the monarch, forbids the monarch from making laws or establishing courts, requires regular parliamentary approval for a standing army and the like. Its constitutional authority comes from the fact that it was part of the constitutional settlement of the Glorious Revolution - in other words, it underpins our constitutional monarchy. There is no comparable situation now, so that any new measure passed by parliament would just be another act, capable of being abolished or amended at the wish of a future parliament.

The important thing about a constitution is that the process for altering it should be more difficult that that of passing a new act - otherwise it just becomes a tool of government. In order to do this, parliament would have to give up its ultimate sovereignty to a constitution, and I'm not sure how that would happen. In 1781 the USA was emerging as a new nation, with a will to make the system work (a very successful one); there is no contemporary equivalent for us.

The choice is stark - the ECHR presently provides a binding oversight of our law that is separate from government, but it only does so because we allow it to in order to be part of the Council of Europe. The alternative would be to establish a similar body in the UK, but inevitably any disputes with government would be easily resolved by changing the powers of the court - something that would be much easier to do than at present.

[Beef Oven]

We have a Bill of Rights already (1689), although it's not terribly useful in the present discussion. It defines the constitutional status of the monarch, forbids the monarch from making laws or establishing courts, requires regular parliamentary approval for a standing army and the like. Its constitutional authority comes from the fact that it was part of the constitutional settlement of the Glorious Revolution - in other words, it underpins our constitutional monarchy. There is no comparable situation now, so that any new measure passed by parliament would just be another act, capable of being abolished or amended at the wish of a future parliament.

The important thing about a constitution is that the process for altering it should be more difficult that that of passing a new act - otherwise it just becomes a tool of government. In order to do this, parliament would have to give up its ultimate sovereignty to a constitution, and I'm not sure how that would happen. In 1781 the USA was emerging as a new nation, with a will to make the system work (a very successful one); there is no contemporary equivalent for us.

The choice is stark - the ECHR presently provides a binding oversight of our law that is separate from government, but it only does so because we allow it to in order to be part of the Council of Europe. The alternative would be to establish a similar body in the UK, but inevitably any disputes with government would be easily resolved by changing the powers of the court - something that would be much easier to do than at present.

The 17th century Bill Of Rights is (as you acknowledge) irrelevant. We also have the Magna Carta, which, for the matters in discussion, is irrelevant too.

If there is a 'governance' gap within our body politic, then it should be covered off. A Bill Of Rights would do that just fine.

There's something not right about the present situation, where we identify a gap, and just shrug our shoulders at it.

[Barbirollians]

The only problem with the Convention - apart from the delays in its handling of cases- is that Governments don't like being told they cannot do things because they violate it .

May's proposal to scrap the HRA is idiotic as that will simply mean that the hands of the domestic courts would be tied and litigants would have to seek redress in Strasbourg. She ignores the fact that sometimes the ECHR has taken a different and more government friendly view as a result of taking into account our SC's consideration of a case .

To leave the ECHR would be to make us a pariah state with only Belarus for company in Europe .

[Pabmusic]

...If there is a 'governance' gap within our body politic, then it should be covered off. A Bill Of Rights would do that just fine.

There's something not right about the present situation, where we identify a gap, and just shrug our shoulders at it.

As usual, Beefy, you don't grasp the point.

It is this:

We insist that parliament is supreme (I have taught this how many times on constitutional law courses, and you have insisted in this in another thread). Well, if that's so,we cannot have a constitution with safeguards comparable to any other 'democratic' country. Simple as that, since parliament - and not the constitution - would be supreme. Don't you see the point?

Take the US constitution. It gives a framework within which the legislature and the executive must act. The fact that Bush, Obama, Republican, Democrat control things does not alter the fact that whatever they do is open to challenge on constitutional grounds. And a new government cannot alter things by changing the constitution, since that requires a certain majority (two-thirds?) in both houses and ratification by a minimum number of states. It's difficult to achieve, which is why there have been so few amendments. we have no laws (absolute none) that cannot be overturned by the normal parliamentary process.

When each of our former colonies became independent, we insisted on some form of supra-governmental constitution, sometimes being overseen by the Privy Council, that had powers of veto over domestic acts. Except of course that we never bothered to put our own house in order.

In our present system, absolutely any measure introduced could be overturned by parliament - and nowadays, that de facto means by any government with a majority. The House of Lords can be overridden if the government chooses to invoke the Parliament Act, so the only question is: "Can we get legislation through the House of Commons?"

A constitution in the sense that other countries have them would mean that parliament could no longer be supreme. Even if there existed the will to do that, it's difficult to see how it could be achieved, because any legislation curtailing parliament's powers would have to be passed by the system that it sought to replace.

So what do we have? A parliament controlled by the government that cannot (at least by one argument) give up its supremacy. And the only thing that has the appearance of overriding parliament is the ECHR (and that only because we wish to be members of the Council of Europe, rather than a pariah state).

So let's give up the latter and let the government be supreme!

[Beef Oven]

As usual, Beefy, you don't grasp the point.

I didn't read past this sentence. If you're going to be insulting I'll not bother engaging with you.

[Pabmusic]

I didn't read past this sentence. If you're going to be insulting I'll not bother engaging with you.

Well, there you are.