As
a Libertarian I am often asked where we draw the line between rights
and responsibilities. How do we balance the needs of the individual
with the needs of the many? This is a very difficult question because
different rights require different limitations. Under the European
Convention of Human Rights there are qualified
rights and limited rights. Limited rights are things such as
article 5 which states that even though you have a right to freedom,
it can be taken away if you are found guilty of a criminal act or are
detained for mental health grounds. Qualified rights such as article
11, the freedom of assembly, can be restricted for a variety of
reasons such as national security and the prevention of crime -
provided the state has legitimate aim for such restrictions and they
are necessary in a democratic society.
The problems with this however is
that the British state does seem to have a bit of a track record for
getting it wrong. In fact the claim was made in 2012 that the UK lost
3
out of every 4 cases that were brought against it at the European
Court of Human Rights. This has led to some people wanting to
withdraw
from the European Court System amidst claims that it is undermining
our Parliamentary Sovereignty.
As someone who studied Law at
University, with a special emphasis on Human Rights, I have to say
that while I am not overly fond of the idea that a supranational
court is overruling our elected Parliament I do understanding that
there must be limits placed on our government for the good of our
society. This was a principal accepted as early as 1215 AD with the
signing of Magna
Carta and this is the principal which developed our modern
Parliamentary Democracy as a check on the power of the absolute
monarchary.
Our metaphorical cousins in the USA,
when writing their constitution, decided to ensure that no
branch of Government was above the others and that no overlap
existed between them. This was to ensure that there was fairness in
the law. That their Congress could not pass draconian measures
without the Supreme Court or the President vetoing them. In our own
system no such separation of powers exists. Parliament is supreme and
whilst the courts can on occasion practice Judicial
Oversight they cannot outright strike down laws, merely ask
Parliament to reconsider them.
This is a huge gulf in terms of
checking the power of the state as Parliament both decides the law
and decides whether the law is valid.
This is where the European Court of
Human Rights comes it. It does have the power to rule against the UK
Government and under the Human Rights Act 1998 our Courts must take
the rulings of the European Court of Human Rights into account as
part of our domestic law as well as the rights provided by the
European Convention themselves. This is a huge check on the power of
the state - but not one which we control as part of our domestic law
and there-in lies the problem because at times they have overreached
themselves and the Home Secretary herself claimed they had 'moved
the goalposts' and created unprecedented change outside the scope of
the Convention Rights.
Michael Gove as Justice Secretary
has been tasked with solving this problem for Britain. He will draw
up a British Bill of Rights and he will blaze the path forward as to
whether we remain part of the European Court of Human Rights at all.
I sincerely hope Mr. Gove will pay
attention to the need for us to have a check on Government power
while drafting his proposals and I for one look forward to seeing
them.
As for the European Court... the
independent recently ran a piece in which it claimed the occasional
bad ruling from them was the
price was pay for the rule of law. However to borrow from my
personal legal hero Lord
Denning I am concerned with Justice not the rule of law and to me
there is no Justice to be found in a court which does not even feign
to understand British Values.
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