Subjects ask government to abolish human rights!

Your freedom

Your ideas for your freedom

The Coalition Government is committed to restoring and defending your freedom – and we’re asking you to participate.

However many of those who contributed, rather than supporting restoring and defending freedom, sought to remove the human rights of others, particularly prisoners!

289 results for ‘human rights’

Example 1

RIGHTS DEPENDENT UPON FULFILLING RESPONSIBILITIES

Example 2

scrap human rights for convicted criminals

anyone convicted of violent crimes against the public and enforcement officers should be not be allowed the protection of the human rights act

Why the contribution is important

to many criminals are getting away to lightly

Example 3

A person convicted of murder has their human rights taken away

If a person is convicted of murder they should have their human rights taken away or severely reduced as they have taken away the rights of the person they murdered.

Why the contribution is important

The human rights act is a good thing but too many times it is being used to protect the guilty not the people who really need it. I realize you can’t take away all the rights of a person but you can severly reduce some parts for a person who has committed a serious crime. The main reason to bring in this law is so that law abiding people feel that they are being put first and to even up the balance of law.

And the examples just go on and on and on!

Perhaps, a timely reminder…

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the state and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry of all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it”.

Winston Churchill, 1910

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Liberty Tree of Human Rights

An English Country Garden

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Human rights:the lifeblood of a civilised society

Council of Europe

Protecting the roots of liberty

Human rights:the lifeblood of a civilised society

At the heart of the Council of Europe is a phenomenon
that has improved the lives of millions of people in
Europe. It has forever changed the way that Europeans
perceive one another and their right to life, liberty,
security, a fair trial, to family life and freedom of
thought, conscience, religion and expression.

The European Convention for the Protection of Human
Rights and Fundamental Freedoms, enforced by the
European Court of Human Rights, is a unique and powerful
propagator of civilised values and democratic growth.

The decisions of the Court have improved the way in which
European societies treat their children, homeless people,
patients with mental illnesses, their prisoners and foreigners.
They have encouraged countries to amend legislation, to review
their court systems, or the way in which they deliver justice.

The Court is an institution which allows individuals,
groups and governments to contest alleged breaches of
the Convention by member states. It places the power to
challenge and change a nation’s laws and practices in the
hands of its citizens, upholding and advancing human rights.

The Commissioner for Human Rights is an independent
body within the Council of Europe whose mandate is to
ensure that human rights are respected in the member
states. The Commissioner assists with the application
of human rights standards, promotes education in and
awareness of human rights, and identifies possible
shortcomings in human rights law and practice.

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Proceedings at Interlaken conference

United Kingdom: Lady Patricia Scotland, Attorney General

Many delegations have stressed the need for both states and the Court to respect subsidiarity. I agree.

States, of course, have the primary responsibility for securing the Convention rights. We must all ensure that we implement the Convention in full, and we must empower our courts to grant effective remedies for any breach.

When states discharge this duty, however, the Court has a corresponding obligation of its own. It must never let itself become a court of fourth instance. The Court must exercise restraint where the domestic courts have fully and properly applied the Convention. It is only then that the Court will be able to focus its efforts where it will have the greatest impact, and best fulfil its role as the ultimate guarantor of human rights in Europe.

Hopeless applications to the Court serve no one’s interest. We must therefore encourage those who would apply to the Court, and those who advise them, also to show restraint. Recourse to Strasbourg should be the last resort. We need to find ways to reduce the 90% of applications that are clearly inadmissible: filtering them is one response on which we will work, but it is not the only issue we will have to explore if we are to find a lasting solution.

It would be very helpful if the Court could reach a decision more quickly in order to increase certainty for both applicants and states.
Protocol No. 14 also provides for the accession of the European Union to the Convention. This is a step that the United Kingdom supports, as it will be important to close the gap in the protection of human rights before the Court where actions are attributable to the European Union instead of the existing member states. We look forward to working out in negotiations in Strasbourg the practical implications of the European Union’s accession, and hope strongly that we can avoid all unnecessary complication. It will be important in particular to distinguish clearly between the rights and obligations that are part of accession to the Convention itself, and those which only arise through full membership of the Council of Europe. Furthermore, we will need to ensure that accession has the least possible negative impact on the effective functioning and resources of the Court.

The Declaration that we are adopting today calls upon the States Parties to commit themselves to ensuring review of the implementation of the previous recommendations adopted by the Committee of Ministers. The United Kingdom accepts this commitment, and will proceed to undertake this review at the national level, looking for assistance to our national human rights institutions. We call upon other member states to do likewise in a spirit of honest reflection and self-examination.

The Declaration also calls for a review of the mechanism for the supervision of the execution of judgments. Important work has been done by the Committee of Ministers to ensure the effective implementation of judgments, and we welcome the clear commitment to increasing the efficiency of that process. However, we remain aware of the scale of the challenge: over 6,000 cases are currently before the Committee of Ministers for scrutiny, and we are concerned to ensure that the approach to implementation remains effective and sustainable. In order to ensure that the mechanism for supervising the implementation of judgments is as robust and efficient as possible, we would encourage a full review in the longer term of the system of execution of Court judgments and its supervision by the Committee of Ministers.

The Convention system and the Court, and of course the right of individual petition, are too precious to lose. We can and we must make them work. The action plan we are adopting today gives us a way to do this, and I know we can succeed.

Source.

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Interlaken Declaration

Press release – 145(2010)

Reform of the European Court of Human Rights: joint declaration reached in Interlaken

Interlaken / Bern, 19.02.2010 – In the framework of its Chairmanship of the Council of Europe’s Committee of Ministers, on 18 and 19 February 2010 Switzerland organised a Ministerial Conference in Interlaken in order to decisively spur the reform of the overburdened European Court of Human Rights (ECHR). By issuing a joint declaration the representatives of the 47 Member States of the Council of Europe confirm their intention to secure the long-term future of the ECHR.

At the Ministerial Conference on the future of the European Court of Human Rights in Interlaken Switzerland was represented by Federal Councillor Micheline Calmy-Rey, Head of the Federal Department of Foreign Affairs (FDFA) and Chairperson of the Committee of Ministers of the Council of Europe, and by Federal Councillor Eveline Widmer-Schlumpf, Head of the Federal Department of Justice and Police (FDJP). The Head of the FDJP chaired the two-day Conference. Besides the representatives of the 47 Member States of the Council of Europe, the Secretary General of the Council of Europe Thorbjørn Jagland, the President of the European Court of Human Rights Jean-Paul Costa and the President of the Parliamentary Assembly of the Council of Europe Mevlüt Çavusoglu also took part in the event.

The Conference aimed at setting the course for the future reform of the ECHR. With the issuing of a joint declaration the event was crowned with success. According to the declaration it is necessary in particular to reach a balance between the incoming cases and the settled ones and to reduce the volume of approximately 120,000 outstanding cases as well as to guarantee that new appeals are dealt with in reasonable time. Moreover, the national implementation of the Court’s judgements should be improved and the Committee of Ministers should guarantee an effective supervision of the implementation process. In order to reach these objectives the political declaration contains an action plan with a list of short and middle-term measures as well as an agenda for their implementation.

The Secretary General of the Council of Europe Thorbjørn Jagland declared: “We will save the Court because we have no other choice. People in Europe deserve no less and will get no less”. Jean-Paul Costa, President of the ECHR, said: “I can assure you that in its independence our Court is extremely willing to follow the road indicated at the Interlaken Conference”. The President of the Council of Europe Parliamentary Assembly, Mevlut Cavusoglu, welcomed the measures taken to increase the efficiency of the Court bit insisted that such measures can only bear fruit within the context of a strong CoE.

Federal Councillor Micheline Calmy-Rey underlined that: “In Interlaken we have laid the foundations that will enable us to accelerate the reform process of the Court. Switzerland will actively pursue this target during its Chairmanship of the Council of Europe’s Committee of Ministers and thereafter”. Federal Councillor Eveline Widmer-Schlumpf declared: “I wish to point out that we can be very pleased with the result of the Interlaken Conference. It was important that the result was not limited to a merely political declaration of intent, but suggests more concrete measures”.

On Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov in the presence of the Secretary General of the Council of Europe Thorbjørn Jagland and of Federal Councillor Widmer-Schlumpf deposited the ratification instrument. Protocol 14 will therefore enter into force on 1 June 2010.

The Ministerial Conference in Interlaken is a key event of the six-month Chairmanship of the Council of Europe’s Committee of Ministers, which Switzerland took over on 18 November 2009.

ends

High Level Conference on the Future of the European Court of Human Rights

Interlaken Declaration

19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):

PP 1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);

PP 2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;

PP 3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;

PP 4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;

PP 5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;

PP 6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;

PP 7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;

PP 8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;

PP 9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;

PP 10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

Action Plan

A. Right of individual petition

1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.

2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.

3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level

4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.

5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering

6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications

7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court

8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.

9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.

10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments

11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention

12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:

(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;

(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;

(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;

(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;

(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;

(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;

(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;

(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.
http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf

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Conference on the future of the European Court of Human Rights

Conference on the future of the European Court of Human Rights

Interlaken (Switzerland), 18-19 February 2010

The future of the European Court of Human Rights was centre stage when human rights ministers from the 47 member states of the Council of Europe gathered on 18 and 19 February at the Casino Kursaal in Interlaken.

The aim of the conference, which was organised by the Swiss Chairmanship of the Council of Europe’s Committee of Ministers, was to reaffirm member states’ commitment to protecting human rights in Europe, and their determination to enable the European Court of Human Rights, which is a vital cog in the protection mechanism, to cope with the growing volume of applications.

The Court currently faces a desperate situation. There are more than 100,000 outstanding cases. Ninety percent of the applications to the Court are clearly inadmissible or have no legal basis, which reveals a serious ignorance of the Convention and the Court’s procedures. It also shows that the Convention system needs to be revitalised by a more rigorous application of the subsidiarity principle, and to be enforced in domestic courts.

The Interlaken conference set out to answer some of these important questions on the Court’s future.

n.b. My emphasis added to highlight the particular relevance to the UK, in the light of the UK’s failure to fully comply with Hirst No2.

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National pride: International shame

Hands off our legal system: Top judge tells Europe to keep its nose out of British justice

http://www.dailymail.co.uk/news/article-1290426/Leading-judge-warns-Europe-nose-British-justice.html#ixzz0sctf0Dmv

I was incensed to read the above headline. Even though the headline was not supported by the story that followed it, I instinctively wrote elsewhere attacking the judge. I have since had the opportunity to read Lord Neuberger’s speech in full. Whilst I am critical of him for failing to apply to himself the legal maxim “ignorance of the law is no excuse”, it would appear that he is not guilty of the charge against him as stated in the above headline in the Daily Mail.

However when it comes to the European Convention of Human Rights and European Court of Human Rights, Lord Neuberger would appear not to be the only judge displaying  ignorance. The hit list also includes; Baroness Hale, Lord Phillips, and Lord Judge.

The problem is easy to see, the UK has had to sacrifice some sovereignty when it joined the Council of Europe, etc. And, the UK is attempting to claw back as much as possible of the sacrificed cow. However, the UK is but 1 of 47 Member States and cannot demand of the Council of Europe that it bows down to the history and traditions of the UK. Especially, when the UK has been found guilty of so many human rights violations in the ECtHR. The higher law which the UK must recognise is Human Rights. It is by this standard that the CoE judges the UK.

The human rights as laid down by the Convention are just the minimum standard. Some Member States build upon these in their own countries. The UK, on the other hand, has always sought to keep these to a minimum. Moreover, instead of fully complying with the Court’s judgments has on many occasions applied a minimum compliance. Instead of seeking facesavers, the UK needs to bow its head in shame.

The relevant part of speech by

THE RT HON THE LORD JUDGE

I’m not going to comment on the different views expressed by our political parties on the issues of Europe, and the Strasbourg court, and I am avoiding any inappropriate discussion of the topic, because such political debate is not for a holder of judicial office. But I can discuss some non political matters and perhaps I should begin with the European Court of Justice.

You all know that the decisions of that court bind our domestic courts. That is a consequence of our domestic legislation. As a matter of statute the decisions of the European Court of Human Rights in Strasbourg do not bind our courts. The statutory obligation on our courts is to take account of the decisions of the court in Strasbourg. I have no problem with this. Naturally, the decisions there must command our respect. This is the court with ultimate responsibility for the convention itself. We can follow the reasoning and if possible identify and apply the principle to be found in the decisions, particularly those of the Grand Chamber. But I venture to suggest that that is not because we are bound to do so, even if the decision is that of the Grand Chamber, or because the Supreme Court is a court subordinate to the Strasbourg court, but because, having taken the Strasbourg decision into account and examined it, it will often follow that it is appropriate to do so. But it will not always be appropriate to do so. What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court. But however that question is approached, the further development that has to be addressed is that the European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg. Before I come to it I want to express another concern.

Too many decisions from Strasbourg, and too many domestic decisions, are cited in argument, and, I’m sorry to have to say this to my brother and sister judges, in all our judgments. Part of this is a manifestation of the extraordinary way in which the forensic technique has changed, and part at any rate the result of the development of modern technology. All the cases on the point are assembled, and put into the skeleton argument. That skeleton argument is saved. When another case emerges, from whatever source, Europe or England and Wales, from any part of the European system, and unreported cases in this jurisdiction joining hands with and achieving spurious importance by being linked with an earlier reported case. The process is just too simple.

Professor David Ormerod told me that he worked on the principle that for each case he added, he takes one out. That is salutary. Thus the only cases added are important. Many skeleton arguments would be a lot shorter if the person responsible for them was required to write it out by hand. I also think that our bundles of papers would be radically cut, if the only documents looked at by the court were those which had been copied by hand. With the decisions of the European Court, however, there are occasions of forensic blindness.

Very often, too often, we are asked to consider decisions from Strasbourg – you see them all listed – which have already been considered or must have been considered in the House of Lords or the Supreme Court. That is the decision which binds us. After all, once the Supreme Court has considered decisions of our Court of Appeal, the authority of those decisions evaporates. Who quotes a decision of a Court of Appeal once the Supreme Court has considered the case? No one. Surely we should apply the same rigour to decisions from Europe.

In other words once the Supreme Court has considered the relevant decisions from Strasbourg, we need to employ a powerful self denying ordinance against allowing further citation of decisions on the point which provide no more than an illustration of a principle which has been encapsulated in the decisions of the Supreme Court. Am I alone in thinking that we are being presented with far too many so called authorities, both our own and from Europe, which do not bind us at all domestically.

We are, I believe, tending to forget that the point that matters in any authority that is cited to us is to discover, using the Latin, the ratio decidendi. If we cannot discern the ratio, the decision is not authority for anything save for getting a few helpful quotes which advocates should be able to put into a few words of their own anyway. So I’m hoping the JSB will start teaching our judges to refuse to allow counsel to cite what are often no more than unreported decisions, which do not help to identify the principle, but merely illustrate its application. But it is surely up to us to start the process and to insist on it here and now, with immediate effect. If we do not get a grip we shall bury our system under a mass of paperwork.

The primary responsibility for saving the common law system of proceeding by precedent is primarily a matter for us as judges. And while we are about it, perhaps we should reflect on the way in which I detect that our Australian colleagues (and those from other common law countries) seem to be claiming bragging rights as the custodians of the common law. Do they have a point? Are we becoming so focussed on Strasbourg and the Convention that instead of incorporating Convention principles within and developing the common law accordingly as a single coherent unit, we are allowing the Convention to assume an unspoken priority over the common law. Or is it that we are just still on honeymoon with the Convention? We must beware. It would be a sad day if the home of the common law lost its standing as a common Law authority. http://www.judiciary.gov.uk/docs/speeches/lcj-jsb-lecture-2010.pdf

Comment:

If it is accepted ‘Politics is about power. Law is about politics’ then it is difficult to see how Lord Neuberger is able not to engage in “inappropriate discussion of the topic”. As Master of the Rolls he oversees the High Court, where, for example, convicted prisoners might seek judicial reviews of the decisions of public authorities to deny them the vote. They will rely upon s.3 of RPA 1983. The convicted prisoners will rely upon Hirst No2.

However, Lord Neuberger states, perhaps, with misplaced authority “As a matter of statute the decisions of the European Court of Human Rights in Strasbourg do not bind our courts”.

It is arguable that the Statute of the Council of Europe (Treaty of London 1949) binds the UK to abide by the Convention and Court decisions. Given that the Council of Europe states that Human Rights should be given higher law status within Member States, it is incumbent upon the UK to be bound by the Court decision in Hirst No2 and remedy the breach of human rights caused by s.3 of RPA 1983. It did not stand up to the Hirst test with a challenge under Article 3 of the First Protocol.

The CoE does give the UK a facesaver with the margin of appreciation, giving the Member State the space for manoeuvre in fully complying with the Court’s judgment. But, the Council of Europe is the final decision maker whether the UK has fully complied. The UK cannot be judge in its own cause especially when it was the losing party in a dispute at the highest court in Europe. Until the UK’s human rights record improves, it cannot expect as wider margin of appreciation as those countries which are more civilised within the Council of Europe.

The Lisbon Treaty gave the CoE some new sharp teeth, particularly Protocol 14, which paved the way for Rule 11 ‘infringement proceedings’ to be invoked against a non-compliant Member State. In addition, pursuant to the Interlaken process other sanctions may be imposed upon the UK.

Lord Neuberger has failed to take into account that Hirst v UK(No2) is about the Individual v the State. That is, the 3 arms of the State must hand the White Flag of Surrender to the owner of the case John Hirst. By September there needs to be concrete measures in place to allow convicted prisoners to vote by 2011. This is non-negotiable. It beggars belief that the UK thinks it can dictate surrender terms. The separation of powers has proved to be ineffective in human rights terms.

To sum up, both the supremacy of parliament and separation of powers doctrines, as applied by the UK, have suffered torpedeo blows below the waterline under the Hirst test. Human Rights, Democracy and Rule of Law are the objectives of the Council of Europe. The UK has been found wanting in all threee.

(To be continued)

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