The European Court of Human Rights is a threat to British law that must be dealt with

BrianSJ

I thought European Law had primacy ovr UK Law and that we had surrendered sovereignty in these matters. Would be delighted to be corrected.

James Forsyth

Brian, The European Court of Human Rights is different from the European Court of Justice

Ray

We should not only withdraw from the ECHR, but also from the EU too - which has also been "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States".

Ciaran

It's meant to be a threat to "British law" - that's the whole point of it. If it cannot overrule British courts then it would be toothless.

Are all Tories as stupid as you?

Forlornehope

The European declaration was created for good reasons after the second world war. It has set a useful standard, particularly for those countries that had a facist or Marxist past. Given the positive influence that the ECHR has had, it would be a pity to throw the baby out with the bathwater. A positive response to curtail the creeping jurisidiction of the court while keeping to the original intention of the European declaration would be more in keeping with the public mood. A United Kingdom bill of rights building on Magna Carta and the 1689 bill should constitute our "line in the sand" beyond which the ECHR shall not trespass. Personally I don't trust any British Government to protect these rights without some external check. The threat of public embarassment has some advantages.

Denis Cooper

It was Dominic Grieve, then Shadow Attorney General, who advised that it would "create a constitutional contradiction" if MPs voted for Bill Cash's New Clause 9 to affirm and protect the legal supremacy of Parliament, Division 120 on the evening of March 5th 2008, here:

http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080305/debtext/80305-0024.htm

"Supremacy of Parliament

‘Notwithstanding any provision of the European Communities Act 1972, nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament.’.— [Mr. Cash.] "

the Act being that to approve the Lisbon Treaty.

Gil

I've read the speech and I don't understand why His Lordship is minimising the effect that the Treaty of Rome i.e. the ECJ rather than the ECHR has had on our sovereignty.

'As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system...'

Why does he says this when it is clear that since 1972 we accepted that Parliament is no longer supreme, but Brussels is.

Neil Turner

That's why I'll be voting UKIP in the summer.

There isn't enough clear blue water between the Tories and NewLab

Alf Tupper

I'm sure I heard Hoffman augment this by saying that his criticism is not of the ECHR itself, but of the way, as described here, that it is being operated: it is seen to "aggrandise its jurisdiction and to impose uniform rules on Member States.

How is this an aggrandisement? It either has jurisdiction or it doesn't, and if it does, then its duty would reside in that very thing surely: of imposing uniform rules on Member States?

Or are they there just to look the part?

Liz Brown

time to end the flirtation with he EU and all its federal offshoots ECJ ECHR etc etc. an independant UK NOW

Tim Worstall

Hoffman is also (and he's made the point before) stating that only two of the judges on the ECHR understand the Common Law. Most of the HRA itself is based upon ideas from British jurisprudence. But the people actually interpreting it, those judges, do not understand the framework of a Common Law syste,. There are 47 judges. Two seats currently empty. Only the British and Irish judges will have had any experience at all of a Common Law system. All the rest will have been trained and practised in Roman or Continental jurisdictions.

This is a major strand of Hoffman's thinking. It's not that the ECHR or the HRA are mad or bad, it's simply that the judges are not competent to decide how to ecnapsulate the provisions of the law into a Common Law system.

Thus the conclusion of his argument. Not that we abandon the HRA, just that we no longer allow appeals to go to Strasbourg. Cases will be decided within the Common Law system, by our judges here, those who actually understand the checks and balances that already exist within our Common Law system.

Hofmman is, in the end, saying that human rights are just great, yes, we need to protect them, but we need to do so taking account of the peculiarities of our own wider legal system.

We in UKIP thinks he's being extremely sensible here. For yes of course we should protect human rights....we invented most of the concepts and realities of them after all. It's just that a one size fits all implementation of them won't work when said implementation is coming from those who simply do not understand and have no experience of the Common Law.

Tim Worstall
UKIP Press Office.

Chris

Just when Britain desperately needs an antidote to this awful authoritarian labour government, the right is arguing about who hates human rights the most. Let's be clear about this. Anybody who really thinks that it's a bad thing for Britain to adhere to internationally accepted norms of decency and freedom is just complete and utter scum.

Will B

It just goes to show how monumentally out of touch/gormless the judiciary is. I suppose we must be grateful that after years and years of discussion the argument has finally got through to one of them.

Denis Cooper

BrianSJ & Gil

Parliament remains the supreme legal authority for the United Kingdom.

Even the then Europe Minister, Jim Murphy, was forced to acknowledge that in the Commons last February 27th, reciting from Dicey that Parliament has "the right to make or unmake any law whatever".

EU treaties and laws have no force in this country beyond that lent to them by our sovereign Parliament, through its European Communities Act 1972 and subsequent amending Acts, and Parliament remains free to repeal those Acts at any time, in part or in their entirety.

The purported primacy of EU law has never been anything more than a pretension by the EU's Court of Justice, which like the ECHR “has been unable to resist the temptation to aggrandise its jurisdiction."

British courts recognise the sovereignty of Parliament and the supremacy of the laws it passes, but also recognise that Parliament has agreed that where there is a conflict between British law and EU law then the latter shall prevail, unless Parliament has expressly ordained otherwise.

Hence the formula

"Notwithstanding any provision of the European Communities Act 1972"

in Bill Cash's New Clause 9, which would make it clear to our courts that Parliament was intending to over-rule any conflicting EU law.

Nicholas

"We believe in replacing the Human Rights Act with a Bill of Rights and responsibilities."

Rights but not responsibilities please Mr Grieve. Free Englishmen and women don't need that sort of Napoleonic and New Labour nonsense. England is not a gigantic classroom with we as the pupils and you as the teachers - or a gigantic prison with we as the prisoners and you as the warders. You and the public sector work for us, exist because of us and are paid with the money we work to earn. You are not in charge of us - got it?

Tim Carpenter LPUK

Chris, it is not about that, but who has final say and if those having it are competent. And besides, the UK was one forming those norms, it needs no lectures!

I do not support supranational entities having sovereignty, so the ECHR is not acceptable to me.

What is more depressing is Dominic Grieve talking about "Rights and Responsibilities" as if he has swallowed the meme spun out by Jack Straw &Co.

Any new Bill of Rights should be about constraining the State, that is all, not individuals. We have no "responsibilities" to anyone and most certainly not the State. We have a responsibility to ourselves to respect and uphold the freedoms of others, i.e. don't steal, harm, cheat, coerce or kill and when we do not, that is for the Common Law to deal with, not some Constitution dreamt up by a bunch of fools prattling on about "social rights/justice" (see J.S. Mill's views on THAT).

TomMore

Tim Worstall has made the key point here. Hoffman doesn't have a problem with the European Convention or the Human Rights Act. Indeed, he specifically says that there is nothing to be gained from tampering with the wording of the HRA. Dominic Grieve thinks that as well. He believes in universal human rights, supported the HRA in 1998 and he hasn't really changed his mind. But he's been forced into an intellectually confused position (basically proposing to repeal and then re-enact the HRA with a reference to jury trial) in a desperate effort to hold the line against those elements of the Conservative party, like James Forsyth, who wish to see human rights legislation deincorporated and the Convention ripped up.

The problem for Grieve is that he is in the minority and Forsyth is in the majority, and life will get steadily harder for him now Chris Grayling is Shadown Home Sec. He doesn't strike me as all that concerned with civil liberties.

John Wilkes

It should be appreciated (as per the Tim Worstall - although I am emphatically not wanting to endorese the position of UKIP) that the European Convention on Human Rights has its origins in an effort, post the Second World War, to create a uniform standard of human rights as protection against what had happened in Europe, principally as a result of the Nazi's. The shame of it was that was largely based on what was perceived to be the minimum rights of British citizens as protected by the common law enforced by the Judiciary. One of the good arguments for never incorporating it into UK law in the first place is that we should have had the same rights anyway. More importantly we should have been able to expect Parliament and the judiciary to continue to respect out "traditional" liberties. It is ironic, perhaps, that it should be Lord Hoffman, who should sound of like this as he has a reputation for being very much in favour of a rights based ("liberal") approach to the law. However the current government bear a large degree of responsibility for the present state of affairs. They were insistent on incorporating the Convention into UK law. The major consequence is that we cannot ignore the pronouncements of the European Court of Human Rights (not part of the EU) as we did in the past if it was thought that they didn't accord with the applicable standards of the common law. Tim Worstall is right to point out the profound difference in attitude and approach between the common law and European jurisprudence. Historically (even going back as far as its origins in Roman law) it is different. In a sense we have the worst of all worlds - we drafted the laws according to our own notions of the relationship between ourselves and the state and have them interpreted by judges who have a wholly different notion of what it should be. The result - the current government have passed a huge raft of legislation taking away our rights and have handed the interpretation of whether or not they leave us free or not to European judges. In used to be said that we had nothing to fear from a totalitarian government in the UK using the existence of Human Rights Act as a cover for any amount of illiberality because the European Court of Human Rights would stop it. Well now one of the most senior Law Lords seems to be saying we shouldn't be so sure.

TomMore

John Wilkes: incorporating the HRA has not caused the problem.

Membership of the EU and signing up to the Convention has. That has meant we cannot ignore ECtHR rulings.

As Hoffman explains, the one thing our courts have, by virtue of the HRA incorporating Convention articles into UK law, is a "margin of appreciation" (i.e. a bit of leeway in how they apply the law).

The irony is that if Britain pursued the current Tory policy and deincorporated the Convention articles by repealing the HRA (but remaining signed up to the Convention), we would lose that as well.

Denis Cooper

The general statement of rights in the original Convention is pretty unobjectionable, except for maybe one or two articles.

But then there are the later Protocols to the Convention, and then again there's the case law.

We certainly have to free ourselves from the case law, which has been "developed", ie invented, over the decades by lawyers who are increasingly remote from everyday reality, who are sufficiently well insulated that they're unlikely to suffer the worst consequences of their decisions, who stretch arguments to the point where they're not just tenuous, they're downright absurd, who have strayed further and further from common sense, and who - crucially - aren't subject to any corrective statutes passed by a democratically elected legislature.

We should abrogate most of the Protocols, as well.

Despite the appallingly low standard of most of its present occupants, I still believe that the last word on our law should always be reserved for our Parliament, not for unelected judges in this country or abroad, and I object to any international treaty which tries to stop Parliament having that last word.

John Wilkes

TomMore - I take your point about the "margin of appreciation" although, as I understand the point Lord Hoffman is making, the margin of appreciation is becoming narrower and narrower because the ECtHR is making too many decisions about too many things. But I don't understand what membership of the EU has got to do with it - we were signatories to the Convention long before we were members of even the Common Market and we could continue to have the HRA regardless of our membership of the EU.

Scott

Is it only me that thinks there is no such thing as 'British' Law, given the differing legal systems that exist in the constituent nations of the UK?

Olaf Rye

Why do people believe that because the European Union calls this the 'Human Rights Act' that this is what it is ? This is the same thing that leads people to confuse the 'Health and Safety Act' with measures to actually improve health and safety. Our laws have always protected human rights, arguably far better than any of our neighbours on the continent ever have. No loss would occur to British rights if this was repealed--we must stop indulging the left in the semantic games about protecting human rights by supporting a flawed and poorly considered Human Rights Act which has been unreasonably applied by the British courts and has done little but to protect criminals.

Fergus Pickering

Chris, when a chap says that those who disagree with him (it is always a him) are 'complete and utter scum' then I know he is an ignorant berk. Chris, you are an ignorant berk. Define, if you would, 'internationally accepted norms'. Do they, for instance, outlaw capital punishment? So the United States is acting outside 'internationally accepted norms'. Along with how many other countries. Do you know? No of course you don't. All Islamic countries (I think there are 57) believe women are inferior to men. So all these countries are outside 'internationally accepted norms'? What is the 'internationally accepted norm' on abortion? Or homosexuality? Is it, in all cases just what you, Chris, ignorant berk, happen to think?

Denis Cooper

No, Scott, you're not alone in thinking that "there is no such thing as 'British' Law".

Somebody in Belfast may point out that Northern Ireland is not part of Britain. It's part of the "United Kingdom of Great Britain and Northern Ireland", but not part of "Britain".

And somebody in Edinburgh may point out that under the Treaty of Union, Scotland retained its own legal system.

However the supreme legal authority for the United Kingdom is the sovereign United Kingdom Parliament which sits in Westminster; and while it may delegate legal authority internally to, say, the Scottish Parliament or local councils, and while it may instruct all courts in the United Kingdom that in the event of conflict they should normally apply a relevant law promulgated externally, say, through the EU institutions, in preference to its own law on that matter, the fact remains that in both cases it retains the right to change its mind.

"United Kingdom law", subsuming English and Scottish law, and the law in Northern Ireland, and all local by-laws, would be a more accurate description.

Loudspeaker

It seems corrupt aspects of the British judiciary system are concerned about a supreme court that may overrules them in the interest of justice and a democratic establishment.

Neil Scott

as quoted from a criminal mayor of middlesbrough that cameron wants to advise the house of lords as an employee ie,,"nothing to hide" zero tolerance,as to leave the human rights in england your afraid that criminals such as ray mallon,cleveland police wont get away with murder,or human rights abuses against children and the vulnerable over the passt 7 years of labour rule

Neil Scott

"nothing to hide" as quoted by ray mallon criminal mayor of middlesbrough cleveland

neil scott

7years of abuses under ray mallon criminal mayor,drug dealers buying houses,setting up buisnesses,doorstaff assaults never convicted,police falsifying evidence and interferance with the course of justice,lost evidences,evidence interfered with,abused childrens rights to protect them under the child protection acts,criminals advertised in public a breach of the rehabilitation act,more unemployment,more crime than before2002,benefits stopped to show figures of unemployed down,and crime down,and the cause of deprevation towards the innocents,data abuses in the crb disclosures towards neil scottcouncil tax benefits/rents stopped without good reason,falsified evidence in a speeding allegation in january 09,against neil scott,quashed case received his licence back clean on 201109,10 months later,forced depravation aginst the innocents of middelsbrough,no plans in 7 years to get roadworks done until 5mths before he is due for an election again,251109 police wardens sat in a library on computers instead of policing southbank,mallon criminal failed as a cheif police officer,a defective detective and a mayor role with flawed pilot schemes,who knows the police wardens mite be in my library to delete what ive said towards them,21 arrests over 7years ,it takes one person to look into it before im imprisoned for a crime i did not commit again,i still have only 1 minor conviction in 43 years,my rents stopped my council tax stopped my benefits,jsa, stopped,im not allowed to have my solicitor defend me and im on leagal aid,all before the court case on 02,12,09,this is serious missconduct that ive been executed before a court outcome,that is criminal missconduct by all authourities of middlesbrough under criminal ray mallon mayor of middlesbrough ,operation lancett enquiree ,corruption still exsists in middlesbrough under ray mallon,

neil scott

why wud a criminal be lead into government,david cameron invetigated for drugs offences want ray criminal mallon as police spokeman in the commons also investigated for drugs offence,operation lancett poses questions to how is it possible that ray criminal mallon got away with400 allegations aand admitted 14 offences all on his crb disclosures.better ask sir ian duncan smith mp the ones that got away with it