Big News!!!!!!!!!!
It is a big old bloody news day and no mistake. As well as Prince William having a curry (bloody hell! amazing), noted jurist Stephen Pollard has informed me via his blog:
"If you live in the UK, you obey UK law and no other if there is a conflict"
Wow! We've abrogated the Treaty of Rome! We're no longer under the jurisdiction of the European Court of Human Rights! Presumably this happened last week while I was away. Why did nobody tell me?
(there is actually a serious message to this otherwise rather puerile joke. Pollard, noted jurist Melanie Phillips, etc etc, seem to be "forgetting"[1] that the ECHR exists and is directly litigable in the UK (there is no reason to go straight to Strasbourg these days as the Human Rights Act 1998 implemented it as the law of the UK, but if an incoming sharia regime repealed the HRA98 then we would revert to the status quo ante, so if you were sentenced to 40 lashes by incoming prime minister the Rt Hon Abu-Hamza al-Masri, then you would be able to appeal to the Court of Human Rights and having won your appeal, the House of Lords would overturn both your sentence and the hypothetical Sharia Dhimmi Dummy Act 2011.)
[1] In the case of Pollard this might be an honest mistake. In the case of Phillips, there is surely no way on earth that she can have forgotten about the European Convention on Human Rights, because she wrote an entire chapter of "Londonistan" about how angry she was that the UK had given up its proud sovereignty, right to pass bigoted and/or oppressive laws, etc by passing the Human Rights Act which implemented it in the UK. IIRC, she was particularly exercised (by which I mean this was nearly three pages of the book) about the dangers to our society posed by transsexuals changing the gender on their birth certificates, which oddly seemed to be the most serious example of a practical consequence of the HRA98 that she could find.
It's also rather surprising to hear that there's such a thing as "UK law".
ReplyDeleteahhh good spot! (though I cannot in good faith castigate Pollard for that, as I seem to remember "Marcus" from Harry's Place picking me up on exactly the same point, en route to embarrassing himself about the Attorney General's advice to Tony Blair on Iraq).
ReplyDeleteactually what Williams seems to be proposing is something on the lines of what exists in the legal system of that paradigm of democracy and modernity, Israel.
ReplyDelete... and a quick check reveals that the State of Israel does indeed recognise sharia courts for its Muslim community. Fantastic spot. Will you tell Mel and Pollard or shall I?
ReplyDeleteoh go on, you do it, you might be gentler than I would be.
ReplyDeleteif an incoming sharia regime repealed the HRA98 then we would revert to the status quo ante, so if you were sentenced to 40 lashes by incoming prime minister the Rt Hon Abu-Hamza al-Masri, then you would be able to appeal to the Court of Human Rights and having won your appeal, the House of Lords would overturn both your sentence and the hypothetical Sharia Dhimmi Dummy Act 2011
ReplyDeleteThese legal technicalities can get boring. But the status quo ante was that you had to go to Strasbourg, and then the British government, as a political commitment, followed the ECHR's decision, repealed or amended legislation. The House of Lords did not "overturn both your sentence and the [legislative act]", they continued to be effective within the British legal order(s). So under a different political administration (you offer the example ...) it's not clear that such legislative lashing would in fact be prevented by the ECHR.
"as a political commitment" here means "because we signed up to the ECHR", though doesn't it? If we're going to assume that the UK becomes a rogue state and starts abrogating its treaties left right and centre, then maybe you're right, but the phrase "political commitment" seems a bit weak compared to "treaty law".
ReplyDeleteWhether you prefer 'treaty law' or a 'political commitment' the point is that under the status quo ante, the British courts including House of Lords enforced English law as set by Parliament regardless of whether it was ECHR compliant, unless and until Parliament had changed it to become ECHR compliant, which was not what your summary suggested.
ReplyDeleteI don't think this is true. Matrix Chambers has won loads of cases which had the effect of overturning UK statute law as a result of victories in Strasbourg. It's just not true that (pre HRA98) someone who had won a case in the European Court of Human Rights had to wait until an Act of Parliament had been passed to change the relevant law before they could collect on their judgement. For example, ASLEF was able to expel that BNP bloke immediately they won their case, weren't they?
ReplyDeleteSo if you were sentenced to 40 lashes, went to Strasbourg and won, you would not be lashed (because in lashing you, the British government would be in contempt of the ECHR). And the Sharia Act 2011 would be unenforceable, because the UK courts would be bound to interpret it in the light of the ECHR ruling - it would surely be a nonsense to say that they were obliged to pass sentences that they knew would be the subject of successful appeals. If your point is that the Act would remain officially on the books until it was repealed, then I suppose you're right, but so does the law allowing Welshmen to be shot if caught within the walls of Chester after dark.
It's just not true that (pre HRA98) someone who had won a case in the European Court of Human Rights had to wait until an Act of Parliament had been passed to change the relevant law before they could collect on their judgement.
ReplyDeleteWhat can I say? I don't think that's right: the ECHR non compliant legislation carried on being applied just as normal until changed domestically. It's just a treaty obligation, and they receive no direct application in the courts unless Parliament has required it. The UK courts only became bound to interpret in the light of ECHR with the HRA itself. And Matrix chambers only started in 2000, IIRC.
Support for both of us in the Council of Europe FAQ on execution of ECHR decisions: both
ReplyDelete"What means are available to the Committee of Ministers to exert pressure on a State that does not want to execute a judgment?
The Committee of Ministers is a political organ and, as such, it can bring its weight to bear on the State concerned to execute the Court’s judgment, including through the use of the heavy political sanctions provided for by the Statute of the Council of Europe.
Fortunately, in practice, the supervision of the execution of the Court’s judgments is essentially – and successfully – based on constructive and co-operative dialogue between states.
but also
"How is execution of ECHR judgments handled at national level? Which are the domestic authorities entrusted with the execution of ECHR judgments?
Article 46 of the European Convention on Human Rights (ECHR) provides that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties".
This legal obligation to comply with ECHR judgments involves all the State's authorities, although in the Committee of Ministers only Government are represented through their Permanent representations to the Council of Europe. The Permanent representations are the direct interlocutors as regards execution of judgments.
I guess is depends on how seriously you regard treaty obligations - I'd regard our membership of the Council of Europe as being one of the more fundamental treaties and pretty much equivalent to constitutional law.
Perhaps what you need to do is look at actual cases where British legislation was alleged to be in breach of (a) the HRA and (b) the ECHR pre-HRA. My impression is that in practical terms there's not much difference, except that the Law Lords get the job done a lot quicker. (That's the short version - the long version would be very long, and I'd probably want paying.)
ReplyDeleteThe HRA is a pet-hate of the right-wing. According to the likes of Allison Pearson and Mad Mel, etc. it is a law for terrorists, murderers and rapists.
ReplyDeleteOf course, they'd "forget" it.
Small boy
ReplyDeleteHe picked up a pebble
and threw it into the sea.
And another, and another.
He couldn't stop.
He wasn't trying to fill the sea.
He wasn't trying to empty the beach.
He was just throwing away,
nothing else but.
Like a kitten playing
he was practicing for the future
when there'll be so many things
he'll want to throw away
if only his fingers will unclench
and let them go.
oh danny boy whay do you resent Arno so much...............
christ i was pissed - I meant arranovtich 9 or some thing (
ReplyDeleteBut Danny will know it's true..........
Jesus wept, that's one of the most tiresome and pompous attempts to defend one's Decency I've ever seen.
ReplyDeleteSpeaking of which, I only discovered Decentpedia today.
ReplyDeleteIt's a labour of love, and deserves wider circulation.
Did you see the size of that naan, bloody amazing. We don't get naan that size in the U.S.
ReplyDelete