UPDATE
Since this post of mine yesterday, there have been some excellent contributions from commenters. Indy contributed the following:
The European Convention on Human Rights was drafted under the authority of the Council of Europe – not the EU, although all EU members subscribe to the Convention. It is not exclusive to EU members however as the Council of Europe is not a part of the EU – so, for example, Russia is a member and in theory must incorporate ECHR.
Lallands Peat Worrier has written a post of his own as well as putting forward a very informed argument. I confess to being quite ignorant about what happens in Europe these days and the fault lies mainly with me, but it's refreshing to read arguments in plain English from my readers. To understand my present ignorance the excuse is I was asked, back in the 80s, to read the Maastricht Treaty and produce a 2 page report. It took me many days and the jargon was most difficult to interpret. Usually I read German papers a few times a week and they often have a different translation of EC and ECHR communications compared to the UK.
OK, ignorance is no excuse, but I tried.
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16 comments:
You're right to be wary of this SR - it's a quagmire of legislation. What falls to the jurisdiction of the ECJ doesn't necessarily fall to the ECHR. All we know is that the ECJ and the ECHR have supremacy over UK Law.
I'm still waiting to know why the SNP would rather be allied with the EU than the UK. I just don't understand why Scotland, of all places, would accept foreign rule.
What I want are rights which don't change when the political parties change..thats what I really !really! want...
We used to have Rights which didn't change but now it seems we have to fight to get them back. We thought they were immutable but, apparently, they're not.
Indeed GV and I'm hoping Lallands will spell it out to me as to when and why our laws were so reduced and how it affects not only Scotland but England.
I do hope he has time to post something which will be helpful to the likes of myself.
I agree with GV's first point - it is a horrid quagmire of institutional competencies and jargon about those competencies - and at no point is it aided by the fact that the word "Europe" makes a constant reappearance - whether the overarching organisation is:
(a) the European Community (containing the European Parliament (MEPS), the European Council (domestic ministers) and the Commission)
or
(b)The older Council of Europe, consisting primarily of the European Court of Human Rights - but also a Parliamentary Assembly constituted not by separately elected members, but being made up of MPs from the various assemblies across the Member states.
The observation that both (a)the European Community legal order presided over by the European Court of Justice - and (b) the European Convention on Human Rights regime presided over by the European Court of Human Rights - command supremacy over UK laws isn't true.
If it were, the Human Rights Act 1998 wouldn't have been a significant change. If you read the Act - it isn't too hideously drafted - you'll see the following.
If a court finds a piece of UK legislation is incompatible with the United Kingdom's international obligations under the European Convention on Human Rights, as interpreted by the European Court of Human Rights, that Act is not nullified. All the court can do is make a "declaration of incompatibility".
This is what happened in the House of Lords appeal - generally referred to in the press as the Belmarsh Detention case in 2004. To jog the old memory, that case concerned the detention of foreign nationals. Coverage here: http://news.bbc.co.uk/1/hi/uk/4100481.stm
While this certainly invites a response from government - the Act remains in force.
In contrast, loosely, European Community Law does claim supremacy, in the event of conflict, over domestic laws. I should stress my own area of interest and expertise is the European Court of Human Rights, rather than the European Community institutions. Nevertheless, the long, long legal battles surrounding this question are to be found in the Factortame cases.
While I've not had a chance to review the content of the wiki entry on the subject, for a taster overview, see here:
http://en.wikipedia.org/wiki/Factortame_case
Just a very brief outline there - will perhaps attempt a more robust outline hereafter - but I hope making a few of these things a little less muddy assists.
LPW
Many thanks LPW. I appreciate your efforts to bring a little clarity to the fore.
I am not an expert on this but my understanding is that ECHR does not take precedence in the way that EU legislation takes precedence in areas where the EU has competence.
The 1998 Human Rights Act gave people in the UK the ability to bring claims to court here and courts can find that a particular thing is incompatible with ECHR. So the rulings are not necessarily made by the European Court, they can be made here, such as the slopping out ruling. I do not believe that the European Court has the power to over-rule Parliament but as with any legislation the interpretation is a matter for the courts, not for politicians.
I do agree with Mr Mxyzptlk – most people want rights which do not change, which are set out and clearly understood by everyone. We want to know what rights we as individuals have, what rights the state has to tell us what to do and what the limitations on the power of the state are.
That is what a written constitution would give us. The SNP published a draft constitution for an independent Scotland some time ago (it was authored by Professor MacCormick who has so sadly passed away). I am convinced that having a written constitution would solve a lot of these problems.
Don't you think the rights lean too much towards toe perpretator rather than the victim in criminal cases though Indy? That's where the anger is and also the amount of taxpayer's money legal firms receive who specialise in the HRA.
I wrote something on someone's blog a few weeks ago and had an email asking me to contact this English solicitor who specialised in HR. Still puzzled as to what I wrote and where but these lawyers are obviously trawling the net for business.
I don’t think it is really possible to say that. There is nothing in the legislation which is predisposed to support perpetrators rather than victims. There have been some controversial cases but in each individual case the decision has been made by judges interpreting the law. It is their interpretation that has been controversial. If there is a tendency for judges to interpret the law to favour criminals rather than victims I don’t really know why that should be.
But perhaps the issue is that some people think prisoners should not have any rights at all. That’s not something I could agree with. Prisoners are there to be punished but not tortured or treated like animals.
Perhaps it's true to say that ECHR enjoys de facto supremacy over UK law since, whatever the precise legal position, it's politically impossible for a UK government not to take due cognisance of ECHR rulings, whether emanating from Strasbourg or the domestic courts?
And, of course, presumably if it's considered that both ECHR and EU law take precedence over domestic law (whether de facto or de jure) then that's because Parliament has ceded sovereignty in this regard and as a corollary Parliamentary sovereignty means that this can be reversed if the UK legislature so wishes?
Indy, as I said in the other thread the problem is essentially that the leeway afforded to the judiciary to interpret these broadly-drafted provisions means that the confict basically comes down to the politics of the judiciary as compared to politics generally?
The judges in effect become too much of a part of the legislature, breaching the classic separation of powers doctrine.
Of course, that's a perennial problem with legal interpretation, but it indicates why the debate and conflict essentially reflects the political situation.
' as a corollary Parliamentary sovereignty means that this can be reversed if the UK legislature so wishes?'
Stuart, didn't the signing of the Lisbon Treaty remove this choice? As you know I'm no expert about this but I recall reading something along these lines.
Subrosa, you probably did; I think it's one of those big consitutional questions that LPW could probably enlighten us on, but in practical terms I suspect that if a UK Parliament voted to leave the EU then it would very probably happen irrespective of the strict legal position.
Yes that's a fair comment Stuart. But my point would be that there is only that level of leeway to interpret the law regarding human rights because we have never codified the law on human rights. That's where the argument for a written constitution comes in.
Indy, well if the draft consitution on LPW's site is anything to go by then it looks like an invitation for judicial leeway and a field day for lawyers!!
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