The government has a problem with lawyers
David Blackburn 1:59pm
The government’s strained relationship with the Civil Service is a recurring story
at the moment. Much of the disquiet seems to be the normal tit for tat exchanges immortalised in Yes Minister. In the main, ministers and their advisors express high regard for their officials.
But there are some resilient bones of contention between the government and its lawyers. Again, this is not unusual. When Gordon Brown was Chancellor, parliamentary counsel were exasperated by his inability to take decisions. Brown’s budgetary machinations were finalised in a predictably mad rush, which incensed those who had to amend the bill hours before it was put to parliament.
However, the growing volume of European and International law is deepening the divide between those who make laws and those who interpret them. This morning’s Independent reports that government lawyers advise that training or assisting the Libyan rebels is illegal. Back in February, the government was told that it would have to honour the ECHR’s prisoner voting judgment ‘even if Britain left the ECHR’. According to a leading barrister in the field, this is due to our treaty obligations to organisations such as the United Nations, the World Trade Organisation and the IMF. (Crucially, a British Bill of Rights would not supersede those jurisdictions, even if the government were seriously considering its introduction.)
The barrister says that the prisoner voting case is arguable, but government lawyers are discouraging confrontation. The Attorney General might seek an alternative view; but, as Tim Montgomerie revealed a couple of weeks ago, Dominic Grieve, a lawyer’s lawyer, empathises with Whitehall’s position. He is entitled to do so, but the stalemate in Libya and the prison voting saga is damaging the government politically. Dick the Butcher’s solution is rather extreme; but a second opinion might not be a bad idea.
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John Hirst
April 28th, 2011 2:55pm Report this commentWhat a pity that this "leading barrister" in the field is anonymous!
"The barrister says that the prisoner voting case is arguable". It was arguable because I argued it and won it before the highest court in Europe. All that remains is for the UK to fully comply with the ECtHR ruling in Hirst v UK (No2).
Until the UK toes the line it will remain in the dock. Besides the political pressure to comply from the Council of Europe and the UN, the EU has also joined forces against the UK.
The Laughing Cavalier
April 28th, 2011 3:02pm Report this commentLawyers opinions follow the laws of physics. For each one there is an equal and opposite. The government should choose the opinion it likes best and then just steamroller on.
Barry Bilge
April 28th, 2011 3:17pm Report this comment"(Crucially, a British Bill of Rights would not supersede those jurisdictions, even if the government were seriously considering its introduction.)"
We already have a Bill of Rights and have had since 1689.
AF
April 28th, 2011 4:35pm Report this commentThese Ministries are still impregnated with Blair Brown and Cambells placemen they are entrenched after 13yrs of Labour rule.
They should be identified exposed and got rid off.That would be a start.
Roger Gough
April 28th, 2011 4:43pm Report this commentWho does NOT have a problem with Lawyers?
John Hirst
April 28th, 2011 4:53pm Report this commentI have a problem with liars!
You won't find Kenneth Clarke's speech to the High Level Conference on the Future of the European Court of Human Rights in IZMIR, 26 – 27 April 2011, on the MoJ website.
According to Kenneth Clarke's speech "The British people have an unshakeable belief in individual liberty, freedom, fairness and a sense of what is right". Whatever, he then makes a false statement "that human rights are integral to our view of the world". Followed by another false statement "which we in Europe are able to rely on the Convention to protect". And yet another false statement "The UK remains as committed to the Convention as the day we first ratified it, 60 years ago last month".
Prisoners are a national minority subjected to "Civic Death". Under the Convention and ECtHR decisions prisoners are human beings entitled to their human rights. The Prisoners Votes Case proves that human rights are not integral at all. And that prisoners cannot rely upon the Convention to protect them from State abuse and victimisation by wider society. If the UK was really committed to the Convention, to secure for all within its jurisdiction the human rights contained within the Convention, why has the UK failed to fully comply with Hirst v UK (No2) for over 5 years?
Over to you Kenneth Clarke for an answer.
Prodicus
April 28th, 2011 5:13pm Report this commentI believe that the German Constitution asserts the primacy of German law over all others, including those of the EU, its treaty agreements and so forth. (I stand to be corrected.) That being so, I feel a one-line Bill coming on, to give UK Parliamentary law the same supremacy.
Victor Southern
April 28th, 2011 6:52pm Report this commentThe Universal Declaration of Human Rights is a poorly drafted and essentially contradictory document.
It says:
Article 3.
Everyone has the right to life, liberty and security of person.
That could be interpreted as a prohibition aginst depriving anyone of their liberty.
It could even be argued from:
Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each state,
that nobody can be prevented from going anywhere they wish and nobody's movements can be restricted.
One must agree that in the cases of convicted criminals those clauses are absurd and contary to natural law.
But then read 29.1 and 2:
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
29.2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
You see, that clause says, with any reasonable interpretation, that a democratic society has a responsibilty to maintain morality and public order and that it can limit the previously described freedoms to ensure that those are secured.
Despite the flimsy authority of this outmoded and somehat bizarre document the ECHR has made many rulings on matters that affect the individual rights of states. The prisoner voting ruling is just one such.
I invite you now to read:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The ECHR ruled to give effect to 21.1 in the Hirst case and in so doing conveniently ignored 21.3 which states that the will of the people shall be the basis of authority of a government. That is not "all people" as in all of the people of World but the stated will of the people of that state. The ECHR has not any inheritable authority to rule against the stated will of the people.
One might even reason then that judges, here or elsewhere, are not competent to express the stated will of the people except insofar as it may be taken that laws passed by their duly elected representaives do express that will [which can change from time-to-time].
I am not a lawyer but I can read and think and like to subject much of the ideas that I read about to the acid test of logic.
Xeelee
April 28th, 2011 7:13pm Report this commentThe German Constitutional Court has asserted that the German Constitution takes precedence over EU law, in case of conflict. This issue has very little practical significance however.
There is no doubt in Germany that EU law takes precedence over ordinary German (federal or state) law. This has long been accepted by the Constitutional Court.
Dennis Churchill
April 28th, 2011 7:34pm Report this comment@ Prodicus
Exactly. Treaties are being used to entrench laws so as to limit democratic discretion.
The argument seems to be that politicians can sign our liberty away, with a treaty, that future elected politicians can’t alter.
Tarka the Rotter
April 28th, 2011 8:22pm Report this commentMmmmmm the elephant in the room, surely, has got to be the will of the people. Admittedly, we are never asked so we can't know for sure, but how come in a democracy the will of the people is brushed aside by international organisations and supra-national legislation?
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