Sovereignty

I don’t think the facts around Human Rights and Sovereignty are being well exercised. I have just seen a post on Facebook where someone claimed that Britain was being ruled by the ECHR in Strasbourg. In the words of Captain Blackadder, there’s only one problem with this theory. I thought I’d put this right; this article contains hyper-links and hover comments.

In this article, Channel 4 News take a selective look at recent rulings, pointing out that the Government may not deport people to countries that use torture as means of criminal investigation, that there may not be a blanket prohibition on voting rights for prisoners, striking down the laws prohibiting male gay sex, striking down employment conditions restricting the wearing of crucifix jewellery at work as an expression of freedom of religion, prohibiting whole life sentences without review, and we’re waiting to see their view on the investigatory powers bill and the intelligence agencies, although the CJEU has stated that the data retention directive under which the telco/ISPs collect the data is illegal.

This paper contains a statistical analysis of the work of the ECHR. Table 4.2 shows that on average, there were 8 adverse findings per annum and the foot notes show that having a European Court, accountable to a simple basic law is a necessary back stop against harsh and arbitrary behaviour by an over mighty and over entitled government. Frankly, this is one place where advice from  judges forged in anti-facist or anti-stalinist struggles and the new democracies would benefit us in Britain.

Isaac Deutscher criticised Lenin’s methods [of “hard” centralism and mistrust of the working class] as leading to this:

….the party organization substitutes itself for the party, the central committee substitutes itself for the organization, and, finally, a “dictator” substitutes himself for the central committee. …

In the UK we have something similar where Parliament assumes it represents the popular will of the masses, a right assumed by the majority party, which is again assumed by the government and its payroll vote. Parliament due to the doctrine of Parliamentary Sovereignty, where it cannot bind its successors, means it can’t make unbreakable promises to its citizens. Interestingly it can to other countries if the treaties have dispute resolution clauses, and the EU treaties do. This is why the EU is the effective guarantor of our human rights. It can sanction the government, and leaving the jurisdiction is hard.

1 Comments.

  1. Silly me, I was provoked on Facebook by the comment that Britain was ruled by the ECHR. This led me to making a reply and so I started to look and see how many cases the British Government had lost. (8 per year since 1967). I found the article’s above at Channel 4, and the Equality and Human Rights Commission, the 1st is a piece of political reportage, the later a piece of academic research. The C4 article reviews among other cases, the ECHR rulings that the UK may not universally remove voting rights from prisoners and that whole life sentences must have review provisions. Basically I agree with both these rulings.

    Prison both punishes the malefactor, and offers opportunities for rehabilitation; it also protects society from re-offenders (for a time). The fact, well opinion, is that in the UK, most legislators and probably most voters are more interested in the first of these effects. But both voting and a review are rights, defined in Article 3 of the First Protocol, the right to vote and Articles 5 the Right to Liberty.

    Punishment must fit crime, and we are not yet ready to let computers sentence the guilty. Judges rightly, take into account many circumstances when sentencing including the remorse of the guilty and guidelines from Parliament; they even sometimes take into account that society must be protected and that prisoners may be rehabilitated. Sentences, to be just, must be specific to the case. Blanket provisions such as those in Britain’s prisoner voting rules and whole life sentences breach this need. It’s to our shame that we need to be told this by a court filled with foreigners. It is however a better result and we should thank those judges.