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!