Wednesday, 25 January 2012

Cameron and the ECHR

Courtesy of The Talking Clock, on Twitter, comes the words of Lord Denning, in 1986, on the matter of justice:
"I wish that I had put down my name to this amendment because it is important. As it is so impossible to understand what this is all about I must explain it.

The European Court has been overwhelmed with cases and cannot get through them. It is therefore seeking to make a number of lower courts—called attached courts—to deal with the gross overloading of work. That is the essential part of the article concerned, which in two or three places is a whole page long. The important point is that it is to set up a series of courts of first instance which would try cases on fact final, on law, and with appeal to the European Court.

I wish also to add a word about the European Court and its methods, which have been applied. They have been considered quite recently in the Court of Appeal in England. I am dealing with cases under those important articles 85 and 86 which deal with commercial matters of the first importance—abuse of a dominant position and unfair competition. Companies from the United Kingdom are closely involved in these matters. One case on those sections came, when I was sitting in the Court of Appeal, between an English Company, a garden cottage one, and a great English milk marketing board. The case I mentioned of 1985 was in the Court of Appeal between, again, two English companies, one from Belfast and the other from England. The case was all about repairing cameras, unfair competition and the like.

That last case went to the European Commission and thence to the European Court of Justice. I shall not go into the details of it, but the Master of the Rolls, Sir John Donaldson, said it was totally unlike anything in our judicial system, with both sides being heard and dealt with then. Instead, it went before the European Commission, who were themselves treated as the investigators, almost as the prosecutors, and who carried it through, as Sir John Donaldson said, quite dissimilarly from our own English procedure. Indeed, he said that it was to be regarded as administrative and not judicial at all. The Commission, were, if you please, acting, as I would think sometimes they do on the Continent, as an inquisitorial system, enforcing their own view, instead of as an adversarial system which the law of England has always maintained.

The question which I am seeking to raise before your Lordships this afternoon is: Are the subjects of Her Majesty to be compelled, for their rights and defences, to go over to Europe to courts manned by European judges with a procedure quite unknown to us, a procedure which our own courts have said is not judicial in the least but merely administrative? Are we to let British subjects go over in that way?

Now I come to the British Constitution. We have a basis which is quite unknown in Europe. Each one of us, and each judge (certainly each one here) has the oath of allegiance to the Queen and, corresponding to that in our constitution, is a duty on the Queen to protect us. By our constitution the Queen is the source and fountain of justice. It is at her behest that we have Royal Courts of Justice here; it is at her behest that our judges are Her Majesty's judges, and it is at her behest, for the protection of all of us in response to our allegiance to her, that she sets up the courts of justice to hear and decide our disputes.

I would like to emphasise that unknown in Europe is this constitutional principle of the allegiance of the British subject on the one hand, and, on the other, the duty of the Crown to protect the British subjects. Let me remind your Lordships of the oath of allegiance. It is constitutional, the oath which every Member of your Lordships' House takes, and it is from an Act going back 100 years or more: I do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law. So help me God. Every one of your Lordships knows that oath of allegiance. It is part of our fundamental constitution. Let me remind you of our judges' oath as well: I do swear that I will well and truly serve our sovereign lady Queen Elizabeth the Second in the office of a justice of the High Court, and I will do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill-will. There is our judicial system deriving from the Crown as the source and fountain of justice. No court can be set up in England, no court can exist in England, except by the authority of the Queen and Parliament. That has been so ever since the Bill of Rights.

This is also part of our Constitution: corresponding to that duty of each British subject to the Queen, the Queen herself is under corresponding duty to protect British subjects in our rights, which we have inherited all the way down the line. I remind you that the Roman Empire had the same duty. There is Paul and so on: "Can you do this to a Roman citizen?"—Civis Romanus sum. You all know that quotation. Did not Palmerston say in 1850, in his greatest speech: 
As the Roman, in days of old, held himself free from indignity when he could say 'Civis Romanus sum, so also, a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him from injustice and wrong.". That duty in England, the duty of protection of our citizens, the correlative of allegiance by the Queen, is done by provision of the police force to protect us, and by the courts of justice which she has established.
I need not go into all the cases. This principle can be found back in the time of Lord Coke, in Calvin's case, as between England and Scotland: Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects because they are bound to obey him; and he is called their liege Lord because he should maintain and defend them.". The most recent illustration of it is the China Navigation case, reported in 1932 King's Bench. So the Queen is bound to protect us and to afford courts of justice on which we can rely and to which we can go.

In Europe that constitution is unknown. There is no one source or fountain of justice in Europe. Let me tell you the oath which, under this Treaty of Rome, each judge takes: I swear that I will perform my duties impartially and consistently, and preserve the secrecy and deliberations of the court". I repeat: I will perform my duties". What are those duties? Nowhere are they spelt out in the Court of Justice except in Article 162: The Court of Justice shall ensure that in the interpretation and application of the Treaty the law is observed". The only duty of those Community judges is a duty to see that the law is observed; in other words, that Community law is observed, not the law of England. There is no duty to protect the British subject. Are we then today to say that British subjects are not to go to our courts in England or to Her Majesty's judges in order to secure justice; and that they are not to seek the protection of the law as we know it under the hearings and procedures which we have established over the centuries, but to go to an attached court, to the Court of Justice in Luxembourg?

According to this proposed article the attached court will operate according to the same modes of procedure as at the moment. It is a procedure and process which has already been condemned by the Court of Appeal in England as quite dissimilar from our English law and indeed merely administrative. Are British subjects to be compelled to go there?

That is my criticism of this article which is mentioned in two or three places in this part of the group that we are discussing now, as I tried to point out, because you cannot see it other than by reading through them. There it is in Amendment No. 42 on the Marshalled List: The provisions of Article 168A of the EEC Treaty"— that is the article that we are now considering and it is the one which establishes these attached courts in Luxembourg—shall not be interpreted or applied so as to enable any such attached court to sit in the United Kingdom, or to exercise any jurisdiction over British subjects resident in the United Kingdom". That is subsection (1).

Subsection (2) states: In lieu of the jurisdiction of any such attached court, every British subject resident in the United Kingdom and owing allegiance to Her Majesty the Queen shall be entitled to the protection of Her Majesty, according to the law of England, administered by Her Majesty's Judges sitting in the Royal Courts of Justice under the Rules of the Supreme Court". I am stressing the constitution there.

Then in subsection (3) there is a parallel jurisdiction where we do it ourselves: If and in so far as under Article 168A … any such attached court is given jurisdiction to decide disputes according to Community Law, a like jurisdiction shall be exercised by Her Majesty's Judges also to decide them according to Community Law (in so far as that is made part of the law of England …)". So there it is. It is simple and intelligible, I hope. All it is saying is that we British subjects owe allegiance to the Queen and the Queen is under a duty to protect us. She has performed this duty by providing the Royal Courts of Justice to which we can take our disputes and have them decided by Her Majesty's judges. We should not be compelled to go over to a court in Europe manned by we know not whom or in what circumstances in order to go through a procedure and process that are altogether unknown to our law and which the Master of the Rolls has said are quite dissimilar to our own procedure and practice.
And our politicians are, in general, in agreement that membership of the ECHR is essential for social justice? Of course, allowances have to be made for David Cameron who did not start work in the Conservative Research Department until 1988, so he was probably concentrating more on 'Bulling(don)about' with the likes of Boris to take an interest in that which was happening in the real world. It is also debatable whether the Philosophy content of his PPE actually included any aspect of history and the philosophy that our forebears in history had - but I digress.

That is probably why the man who believes in change has spent part of today trying to argue for change in the presence of the unchangeable!


Woman on a Raft said...

Sorry, but this is all irrelevant. Lord Denning was talking about the ECJ, the constitutional court of the EC (now EU) the one which rules on treaty interpretation, now the Lisbon Treaty. That is why he's mostly concerned about commercial matters.

The court which is at issue - an entirely different court, not part of the EU - is the European Court of Human Rights (ECtHR) which was set up after WWII in an effort to prevent another situation where a state merely changed laws to suit itself and then argued that it was all legal, no matter how awful those laws were.

Until the Lisbon Treaty, the rulings of the ECtHR could, theoretically, be regarded as advisory but not binding, but in practice a government losing at the ECtHR was unlikely to ignore that although they whinged a bit.

Following the Lisbon Treaty, the rulings of the ECtHR were made binding as this was a condition imposed by membership of the EU.

If we left the EU tomorrow, we would still have to think about whether to pay any attention to the ECtHR.

However, if we left the EU tomorrow, we would still retain membership of the ECtHR.

Ian Hills said...

Good comment, WOAR, I've tried to make the point before that ECHR is part of the Council of Europe, not the EU, which has its own court (ECJ) in Luxemburg.

On the other hand it worries me that ECHR judges are just as much political appointees as are ECJ ones, and that the growing powers of the EU (eg on asylum matters) are tending to overlap Council of Europe matters.

Judicial activism on the part of ECHR seems to fit EU mass immigration policy too. Not to mention the interests of lawyers like Cherie Blair.

Woman on a Raft said...

Agree. I'm not defending the ECtHR. It has clearly gone wildly beyond the original remit of trying to stop the state treating the family as a hatchery, and at the same time it has failed to prevent exactly that.

Against that it has produced some rulings with which are important and uphold the individual, but it is showing its age terribly because when it was written there were all sorts of other assumptions, such as that the newly independent nations would be economically successful and their citizens would want to stay there.

It pays insufficient attention to the rights and customs of indigenous people, failing to guard against recent oppressive measures while overturning long-established common law views which have given stability to the country since the English Civil War.

WitteringsfromWitney said...

Woar & IH: I am well aware that the ECJ and the ECHR are two different bodies, however the post was done to illustrate exactly the point that IH made, that there is an increasing overlap which with the EU joining the ECHR in its own right will just further complicate matters. I am also perfectly aware that whether the EU has joined or not, were we to leave the EU, it would necessitate termination of the ECHR as a separate act.

Therefore the post was not irrelevant and I had hoped it was not necessary to spell out everything in detail.

TomTom said...

WOAR makes a good point, but WfW has his defence that Denning made a commentary valid for any external court outside England...even the Extradition Act with the USA.

The ECHR is set up by Treaty but it was Churchill's 1946 Speech that heralded the Council of Europe and it is a treaty provision that the UK will implement Court Rulings....only Belarus is not involved which is why I think Cameron is whistling in the wind.

I do not believe there will be any changes of any type unless there is regime change in Britain leading to a rupture; in short every election should be seen as preservation of the status quo.

PeterCharles said...

I think we all know that everything Cameron says is pure bombast, sounds good but is effectively meaningless. The important question is why is he doing it.

It may be diversionary tactics to take the focus of the appalling economic situation, or it may be posturing to cut down on back bench disquiet. Personally I think he is gearing up for, or at least hedging his bets in case of, a fracture of the coalition and a consequent election on the basis that Labour could not get a coalition majority.

cosmic said...

I agree with PeterCharles.

Cameron isn't a fool. He realises perfectly well what the nature of the ECHR is and what the consequences of doing anything about it would be.

He also realises that the EU and ECHR are perceived as problems with a significant portion of his supporters. The answer in both cases is a bout of empty 'talking tough' purely for home consumption. This, of course, relies on the audience having not the slightest idea of how either of these things work and short memories.

WitteringsfromWitney said...

I am pleased to see that comments have now begun serious debate, rather than point-scoring!

My own view is that PC is correct in his theory that Cameron is hedging his bets in order to cover his 'national arse'.

c is quite correct when he states that Cameron is not a fool - at least where his own continuance in power is concerned. That is totally different from being the complete idiot where policy is concerned.......!

What really p's me off is that we pay for Cameron and his like to cement their position in our political world when their efforts and attention should be directed elsewhere!

cosmic said...

The reason ECHR judgements and EU law take supremacy is that we have legislation in place which gives them supremacy.

Cameron, or anyone else in the same mould, is not about to change that. Subscribing to the ECHR is a condition of EU membership.

Things turn up such as prisoners' votes which cause waves even as far as the Tory High Command. The Cameron/Blair/Major figure then grumbles and makes the odd speech protesting most vigorously in the reliable hope that making noises will be mistaken for taking action or a serious intention to take action, basically a form of soothing cooing, then everyone forgets about it and it's business as usual.

Of course, neither the EU nor the ECHR have the slightest intention of changing. I suggest a lot of the problems that seem to come from these bodies are in large part, home grown anyway.

TomTom said...

European Legal Structures

WitteringsfromWitney said...

c: And the fact it is indeed homegrown means that is where we must start!

TT Thanks for that link, appreciated.