Wednesday, February 22, 2012

Why We Need Foreign Judges

There are many points that invariably crop up in debates around human rights, one of which is the issue of "foreign judges". This is always said with an implied slur, as if we should all subscribe - obviously - to the idea that "foreign" judges clearly cannot hold a candle to our own glorious judiciary.
This jibe is an attempt to fill the spaces in the argument with unspoken prejudices and I find it indicative of the level of debate in this country around human rights. What should in essence be a deep reflexion about the limits that must be placed on state power and the inalienable rights of individuals is traduced across the airwaves by petty, spiteful exchanges that centre upon whichever bogeyman is in the popular consciousness. The nature of the relationship between the State and the individual has not moved on in the UK since the Civil War. That's 400 years, so far, of pointless wittering.
The pub-debate level of the British contemplation of human rights has led to one idea escaping serious challenge. That is, the idea of replacing the European Convention on Human Rights with a British Bill of Rights. That this is rather a fatuous proposal is revealed by the fact that, since being incorporated into British law by the Human Rights Act, the European schema already is a "British Bill of Rights".
That aside, the profound flaw in a British Bill of Rights lays in our constitutional system. Parliament reigns supreme, and no parliament can bind the hands of future parliaments. In the context of human rights, what this means is that no Court can overturn a law made by parliament and, worse, any Bill of Rights made into law can be repealed just as fast as it was created. There is no mechanism in the British constitution which allows for any law to be entrenched - that is, like the US Constitution, a law which requires huge efforts and special measures to alter or repeal. The current Human Rights Act could be ripped up in an instant if the government wished it.
Any British Bill of Rights would be a hostage to populist passions and political imperatives, utterly unanchored into a bedrock of fundamental principles. It would boil down to the State saying, "trust me". In the face of political challenges the government has already attempted to institute indefinite detention without trial, indefinite house arrest, and created secret Tribunals where the accused cannot see the evidence against them. "Trust me", in the context of British politics, is a leap of faith that history strongly cautions against.
At the present time there are only two brakes upon the actions of the government. The first is the popular vote, which has proven to be little short of the baying of a mob in the context of Rights. The second is the Judiciary. Not the British judges, though, only European ones. For in our quaint, shambolic system of government no judge has the power to strike down a law no matter how monstrous. The government could enact the Nuremburg Laws tomorrow and there is nothing in the British legal system to restrain the State from a bout of genocidal insanity. Nothing.
Under our Treaty obligations to the Council of Europe, the European Court does have the power to strike down British laws which transgress against the standards of civilised nations. The Council has mechanisms to enforce the Courts judgements. And this causes outrage across the nation. Damn foreign judges...
It is about time that Britain grew up and had that awkward, bloody debate about the rights of the individual against the State. Relying on a British sense of fair play, or a sense of British justice, has proven to be a chimera in the past and promises to be a hopeless promise for the future.
It is because we shy from this debate that British citizens are largely naked against the depredations of its own State organs. And it is because of this helplessness that we need to rely on foreign judges. I can only hope that a day will come when we are mature enough as a political society to realise that unfettered parliamentary power is an affront to the rights of the individual.


  1. The ECHR does not have the power to strike down British laws. It merely has the power to declare that they are in violation, and to issue (often merely token) compensation orders.

    It is for the Council of Europe to carry out enforcement of judgement, with somewhat varied ability to do so.

    Secondly, I always smile slightly at all these Foreign Judges comments. Yes, 46 of the 47 are Foriegn. However, the President, one Sir Nicholas Bratza, is a judge of the High Court of England and Wales. (for those that complain Scotland is not represented, when I visited Strasbourg last year 3 of the 5 advisory lawyers that the UK sends to help the court on Domestic law were Scottish.)

    However, this ignores the far greater travesty done by our media to the Court. In most of the popular press, there is never a distinction drawn between the Council of Europe (which holds the ECHR) and European Union (which has the European Court of Justice). They are two very very different and seperate organisations.

    If you ever see a newspaper article that attacks the EU on a basis of a Strasbourg judgement, burn the paper, and never buy it again as it is deliberately misleading you.

  2. Spot on, both Ben and tallguy. Saw Shami Chakrabarti speaking on this not long ago. Cameron's electioneering is an invitation to other Council of Europe members like Russia, Ukraine and Turkey to say: Why don't we just have our own version of human rights too.

    Problem is: how to get these facts into the 'pub-level' debate.

    Oh and hi :)

  3. What happened then, in the English Civil War?

  4. The 1680 Bill of Rights got written. (after Cromwell and Charles II during the Glorious Revolution) This transferred the power from the Monarch to Parliament. As the Judges of time were the Kings Judges (and still are) they were not given authority to overrule parliament.

  5. As a Canadian, I always thought the British Law to be the basis of our legal system, which clearly stands among the best in the world.

    Alas,your last few posts have been enlightening; there is not an ounce of justice in Britain. I refer specifically to the habeas corpus, which seems to be trampled by both the courts and the media on a daily basis.

    Speaking of which: is the habeas corpus - innocent until proven guilty - even a right in Britain ?

  6. @ Pubicon

    I think it may be a bit naive to assume that miscarriages of justice don't happen in Canada just because we don't hear about them. I suspect that justice systems, almost by definition, are subject to a certain ammount of abuse. At trial, we assume that a group of 12 people will necessarily make fair and reasonable judgements on the basis of available evidence rather than making assumptions based on their personal prejudice and emotional reaction to the case - an assumption in which anyone who has seen the internet should be able to find some flaws. Canada has fewer protections against self-incrimination than does the U.S., and I think we can agree that miscarriages of justice have taken place there.

    The concept of no imprisonment without due process (Habeus corpus refers specifically to the method of ensuring this) originated in Britain and while it has been suspended a few times, that is not the situation at the moment. It has also been suspended in Canada, to allow the internment camps in WWI and WWII, and when Trudeau invoked the War Measures Act.


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