Cameron is accused of posturing on HRA

The Sun is delighted at David Cameron's intention to scrap the Human Rights Act and replace it with a new British British Bill of Rights.  The nation's top-selling red top claims that the Tory leader is singing from its songsheet.

Other newspapers disagree about the wisdom of Mr Cameron's plan but The Telegraph and Independent - coming from very different starting points - tend to agree that it is a half-hearted measure if it is not also accompanied by a willingness to withdraw from the European Convention on Human Rights:

"If the Conservatives stopped short of withdrawing from the Convention, the European code will still ultimately override domestic British legislation. Contentious cases such as those of foreign terror suspects under threat of deportation would still end up being decided in Strasbourg. If the Tory leader regards the present legal situation as an impediment to the proper functioning of the criminal justice system, it is hard to see how anything he is proposing would make much difference." (The Independent)

"While laudably keen to repeal the Human Rights Act, Mr Cameron has also set his face against withdrawing Britain from the Convention that inspired it, a logical contortion that leaves much to be desired in the "common sense" department.  The Prime Minister himself has acknowledged that the real source of the judicial perversion that has left him and his various home secretaries foaming with frustration over the years is the Convention, not the Act, but has shrunk from repudiating it. If Mr Cameron cannot show the courage to take his convictions to their logical conclusion by pulling out of the ECHR, he will be nothing more than a lightweight Tony Blair." (The Daily Telegraph)

"Mr Cameron's criticisms of human rights law are very well made.  But his proposals for dealing with it seem to owe more to the impulse to strike a political pose than to produce a workable policy... Since the European Convention would still apply, whatever Mr Cameron's Bill did or did not incorporate of it would be irrelevant." (Melanie Phillips, Daily Mail)

Speaking on this morning's Today programme Mr Cameron rejected the idea of leaving the European Convention.  The Tory leader said doing so would send a message to certain nations that human rights were in some way incompatible with, for example, the war on terror.

Please also use this thread to identify what you would like to see in David Cameron's 'British Bill of Rights'.

Full text of David Cameron's speech is now at conservatives.com.

Comments

[TomTom]

Dominic Grieve was very good on Rawnsley's Radio 4 programme last night. Very clear. The Germans have a Grundgesetz which Karlsruhe says is superior to the Convention and the Courts accept it as such because it is broadly in line.

There is no reason for the Convention to be a problem for England especially - if it brings its domestic legislation up to a similar - even if not exactly worded standard.

The only surprising thing is that Cameron does not propose a Referendum to anchor it. It must include abolition of the Parliament Acts if it is not to be overturned by a future House of Commons.

Personally, I do not consider that British Judges understand The Convention which applies as much to their own behaviour as to that of The Government.

[Della Petch]

"All citizens have the right to democratically accountable governance."

British or English Bill of Rights? The Scottish Parliament dictates Scottish Law, not the British Parliament.

EU law takes presidence over English (and Scottish) Law, so it doesn't matter what David (I have a lot of Scottish blood running through these veins) Cameron says he will do to England's laws, because he can't.

[Ed]

I think an unambiguous right to freedom of speech would be my first priority. This was suggested in a Civitas pamphlet about Political Correctness ("The Retreat of Reason", I think) as a good way to prevent the sort of "soft" censorship which seems to spring up around contentious issues.

[Selsdon Man]

It was Blair who incorporated the European convention into British law. It is not a requirement of EU membership. If it was too much for even John Major (with Chris Patten as chairman), Mr Cameron should not hesitate to withdraw. Withdrawal would give a Conservative government the freedom to draft a better Bill of Rights.

[Gildas]

A clear and unequivocal right to self defence, especially when upon ones own property.

As for the rest, a British Bill of Rights should be a formulation of all the greatest liberties which were formerly protected by Common Law, before Parliament became a legislative machine in the 20th Century, and qualified or superseded those freedoms.

[Agent Smith]

We already do have one! The 1689 Bill of Rights, upon which the US Bill of Rights is based and, like Magna Carta, is still one of our key constitutional laws (http://en.wikipedia.org/wiki/English_Bill_of_Rights).

[TimC]

Which is a good argument, Agent Smith, for replacing the wet bank holiday at the start of May with a Magna Carta day in summer.

[Henry Edward-Bancroft]

I can't help feeling this is completely unnecessary and in many a distraction from our discussion on other important issues like climate change and childcare.

There was a very sane article in one of the Sunday newspapers some weeks ago about how the "human rights problem" is one of over zealous application and not legislation. What we need is for decision makers to take a more robust view on human rights and not to be afraid of (non existent) consequences.

It's right that we should live in a country where our rights are protected and enshrined. We should celebrate that.

On a lighter note, I work in a school and am always being told by the pupils "I have rights" I just respond by saying until they recognise their responsibilities I don't recognise their rights. So far nobody has prosecuted me!!

I think instead of further legislation we should look at the implementation of this Act. We all have a responsibility to respect the dignity of others but equally common sense should prevail and that should be our overriding concern.

[Henry Edward-Bancroft]

How about a European Union Day within which we could celebrate both the convention on Human Rights and the Act itself?

[David Belchamber]

As I said on another thread, can it in practice be accomplished? We need expert legal opinion, because if it can, then go for it. Nulab says categorically that it can't.

[Della Petch]

LOL Celebrate a European Union Day? Two words - political wilderness. You'd be the only ones at the party that day and you'd be paying for it out of your own pockets.

Two more words - English Parliament. Nothing more, nothing less. It's called democracy. You know, it's what the Conservatives wanted to bomb into Iraq.

[Ed]

If NuLab say it's impossible, then much should be made of the fact that it is now "impossible" for a British government to act as its voters request, and that this power drift has happened on Labour's watch. It's reminiscient of the General Election, when Howard wanted to set an immigration quota and the NuLab goons said that Brussels had removed too much of our independence for that to be possible. NuLab came out of tha one worse, so why should that not happen here, too?

[Serf]

Two rights which underpin all others.

1) Freedom of speech
2) Protection of all property from confiscation, direct or indirect.

[Henry Edward-Bancroft]

As far as I understand it, it's not that it would be impossible but that the Act is in itself a prerequisite to membership of the European Union.

Alas my campaign for a European Union day might well receive scant support, a great idea killed at birth!!

[TomTom]

It is not a requirement of EU membership.

I think you are out of date. It may be from The Council Of Europe but I think it is now part of the Treaties

http://ec.europa.eu/comm/external_relations/human_rights/intro/

Article 6 of the Treaty on European Union (TEU) is the key provision as far as fundamental rights are concerned. It states that:

1. The Union is founded on the principle of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself the means necessary to attain its objectives and carry through its policies.

[Bob Norfolk]

One of the differences between UK and US citizens is that US citizens have had their rights assigned to them by their Bill of Rights. We, on the other hand, have freedoms until they are legislated away from us i.e. we had the freedom to use a mobile phone whilst driving until it was recently legislated away from us.

A Bill of Rights effectively legislates all our freedoms away from us and replaces them with a set of rights assigned to us by the government of the day. By its very nature a Bill of Rights is proscriptive and cannot take into consideration the demands and innovations of the future.

Surely the thing to do would be to just repeal the HRA. On the surface of it we appear to already have legislation that guarantees the rights associated with the HRA.

[william]

Cameron's going to repeal the HRA but not withdraw from the ECHR.

He disapproves of the CFP but he's not going to withdraw from it - he'll renegotiate.

He wants to leave the EPP but hasn't done so yet.

Two steps forward, one step back.

The practicalities of winning power mean that Cameron can afford to be criticised for not being sufficiently anti-EU (telegraph, times etc) but he cannot afford to be buried by the BBC, Guardian, Observer etc which he would be if he took up full-time euroscepticism.

So he plays one shot to please the regulars, and the next shot to please the opponents. His progress in the polls show that his strategy is working.

Once he's in power, he can either continue to puzzle and confuse, or decide which side of the net he's really on. That's probably four years away.

The trend to BNP and other strongly eurosceptic 'fruitcakes, loonies etc' is so far hurting Labour more than Conservative. So he's not going to be too worried about losing votes that way at this stage, while the main game is playing his way.

For those who are interested in what Cameron actually believes in and what he is likely to do once in power, read Compassionate Conservatism.

[Julian Morrison]

Bob Norfolk: read the 9th / 10th amendments. USA citizens are heir to the British legal tradition, and IMO have often treated it kinder than the British have. Your idea that a bill of rights is exhaustive and limiting is a mistaken one.

[SimonNewman]

One problem with the ECHR is that the balance it and its Court set between the various rights is not the balance we would choose for ourselves. The ECHR's right to free speech is very weak, for instance, while the Court takes a ridiculously over-expansive view of what the right not to be tortured means, as Cameron pointed out on the Today program. If a new British Bill of Rights sets a better balance, it would at least be an improvement on the current situation.

Personally I agree with Bentham that the whole concept of universal Human Rights is 'nonsense on stilts', attractive mostly because it gives us carte blanche to bludgeon foreign countries into accepting our norms and values, and bossing other people around is always attractive. A bit like religion, really.

[TomTom]

US citizens have had their rights assigned to them by their Bill of Rights

Completely the reverse of the facts.

The Bill of Rights does not GRANT Rights - it states simply that they are INVIOLABLE and The State cannot pass laws to limit them

[SimonNewman]

Melanie Phillips' article is brilliant, it hits the nail on the head:

"But that very act of codifying rights into law is nevertheless foreign to the foundation of English liberty, the common law. This holds that everything is permitted unless it is prohibited. European law, by contrast, holds that the only behaviour that is permitted is what is written into statute.

Human rights law thus actually diminishes liberty. That's why this country was more free before such law arrived on the scene — and why yet another rights law would merely deepen the problem."

[johnC]

' We already do have one! The 1689 Bill of Rights '

Exactly, and when Adrian Hilton rightly pointed out that the 1688/89 Constitutional Settlement was threatened and undermined by our membership of the European Union his reward was to be deselected as a parliamentary candidate.

[TomTom]

Melanie ought to speak with her husband. It is The Common Law tradition which gives Judges so much discretion to "make law" which is surely the very issue in question.

The case of deportations goes back to a precedent ruling before the ECHR - the Singh Chahal case, a Sikh activist deported by British authorities, in 1996 the Court had ruled that Britain had abused the fundamental rights of the plaintiff.

This is just as much a precedent as any decided in an English Court of Law. We must recall that this is an English problem because Scotland has a legal system more similar to those in Mainland Europe.

The issues are very simple but to read some people you would think we should have Judge Jeffreys and his Bloody Assizes. It is like the issue on the Refugee Convention of 1951 - that has NO impact in Britain.

The Convention was modified in New York in 1967 and that causes us problems because of the way Parliament drafted the Immigration & Nationality Acts.

The European Convention of Human Rights was signed in 1950.........why didn't any British Government after 1951 bother to put in place a Bill of Rights ? we have had 35 years of Tory and 19 years of Labour Governments since that Treaty was signed.

[TomTom]

Cameron's going to repeal the HRA but not withdraw from the ECHR.

I don't see how he can do it withoit leaving the EU which requires him to put both issues in The Conservative Manifesto and to have a Referendum to undo the 1975 Referendum.

[Andrew]

Yurrgh. Just eating my breakfast, turn on the laptop, check here and Mad Mel pops up on screen. Not hungry anymore :-(

[Ted]

Simon highlights why the problem arises the workings of Civil versus Common Law.

The European Convention is in itself a great document, it outlines a view of the basic rights shared/agreed across nations that forms the foundation for co-operation. It doesn't of itself impose those on other countries - states sign up that they agree

But the European Court is propenderantly a court of Civil Law so it approaches Rights from a different angle and argues on the basis of which is written down. Common Law countries have increasingy codified law through statutes but the precision and meaning of those statutes is understood in an environment of common law.

The Human Rights Act asks the English & Scots Legal systems to behave differently, to become Civil Law Courts in certain cases. I'm not sure that this is what was intended nor that Common Law can survive if a major feature of the Constitution is so directly opposed to the operation of Common Law.

On the Bill of Rights I think that Amendments 9 & 10 should definitely be included (suitably modified):
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

and let any Bill be short, be based on or incorporate earler Bills (Magna Carta, 1689 Bill of Rights etc.)

[Alexander Drake]

Bills of Rights defile the ancient common law of the English speaking peoples. They defile and put at risk the multitude of freedoms NOT expressly defined in a Bill of Rights. A written constitution is a much better bet than a written Bill of Rights. I agree that the Glorious Revolution and Magna Carta are superior to some new nonsense.

Please don't do this Dave, or you'll take Britain down the path of being like Canada but with nukes. Ugggh.

[TomTom]

You cannot have a Written Constitution since that Constitution must predate the Parliament elected under the Constitution.

Probably having an Army Putsch for say 10 years will create the hiatus necessary to form a Constituent Assembly to draft the Constitution - but the Constitution must predate the Parliament or it is superior to the Constitution

[DavidB]

A General Election to be called whenever a government increases or introduces new taxes that were not in their manifesto.

[Alexander Drake]

Tom Tom, the New World-er in me initially thinks what you are saying sounds utterly anachronistic, but on reflection it makes sense.

Although I am still attracted to the argument that Labour has so comprehensively smashed the constitutional settlement (the abolition of the Lord Chancellorship and the alteration to the upper house being the most spectacular examples) that to set it in stone (via a written document) is necessary to protect what is left.

[SimonNewman]

TomTom:
"The case of deportations goes back to a precedent ruling before the ECHR - the Singh Chahal case, a Sikh activist deported by British authorities, in 1996 the Court had ruled that Britain had abused the fundamental rights of the plaintiff."

That was decided under the ECHR. It seemed like the problems with over-interpretation of the ECHR started in the 1990s.

[SimonNewman]

Ted at 10:58 above gets it right IMO. In particular, the US Bill of Rights is a successful common-law model:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

This is the most important point - that the State authority has only the powers granted to it. This was the 18th century view of the British state too, and aided greatly in Britain becoming the most successful country of the age. In the Victorian era Diceyan 'Supremacy of Parliament' has ultimately been harmful I think - it worked fine in Oakeshott's "Civil Society", but was easily hijacked by socialism to the ends of an "Enterprise Society", where freedom dies.

[Sean Fear]

I don't want either a Human Rights Act, or a Bill or Rights. The fundamental problem with each is that it turns judges into legislators. Unlike politicians, judges are accountable to no one - which is why they should not be legislators.

It is open to Parliament to repeal the Human Rights Act, by simply passing an Act to that effect. That would not prevent people from appealing to the Strasbourg Court under the ECHR. But it would prevent many of the frivolous arguments that are causing so much aggravation at the moment. It would also end the judges' duty at present to interpret legislation in a way that is compatible with the HRA - which is how judges are effectively given the power to legislate.

[TimB]

The question of whether Cameron's plan would make much difference, as debated between he and Humphreys this morning, seems to boil down to this: a) does Strasbourg give more 'leeway' to states with their own domestic rights protection independent of the Convention, thus allowing them more flexibility? eg Germany b) If this is the case does it only happen because, as Humphreys insisted, Germany's rights law is entrenced as part of the Basic Law (and indeed special entrenchment is given to basic rights)? This argument says that any British Bill would not give us more leeway because it wouldn't be entrenched, due to our lack of a codified constitution. Perhaps makking it exempt from the Parliament Act would qualify it for minor entrenchment. Neither Humphreys nor Cameron brought any evidence to their differing interpretations. It may be that Strasbourg would give more leeway to the UK if we had our own Bill, but not as much as to Germany.

So the Cameron plan could improve things a little. In practice it may have another beneficial effect (assuming you think the ECHR damaging). By scrapping the HRA it would be harder for people to seek redress as they would have to go to Strasbourg. But the ECHR was already infecting British law before 2000, and would continue to do so.

The problem with Bills of Rights can be seen with the above discussion. People have understandably suggested having protections for free speech and property. But no doubt if we were with Labour supporters they'd be putting something about equality first. So both go in. And then you have the problem - it becomes for the courts, rather than just Parliament, to decide whether equality requires bans on race hatred or religious hatred, or whether this conflicts with free speech. And it's hard to cater for Europe, but the UK also has variation within it eg Scots criminal law is separate from UK law, Northern Ireland (understandably) puts greater emphasis on equality.

Nevertheless, Cameron's plan may represent some small improvement.

[Richard]

An American-style Bill of Rights that didn't actually grant us Rights but accepted that we were born with them would be far more suitable for our political culture. I dislike the idea that the British Government has given me my rights, I like to think that as a free-born Briton I was already entitled to them.

Regarding the 1689 Bill, thit would have to be updated due to certain limitations e.g. it only guarantees free speech in parliament. As I have said in other threads, a British Bill shpuld definitely use the word "speech" and not "expression" - the former is far harder to misinterpret by activist judges.

Due to the Common Law principle of Parliamentary Sovereignty a British Bill of Rights could easily be expressly repealed by a simple majority (Thoburn v Sunderland City Council). Nevertheless, such a repeal would draw attention to the government's attempt to violate our rights and hopefully rally opposition against it. Maybe even the Monarch might find her/himself under responsibility to refuse to accept its repeal.

[Richard]

It is also important t6o note that the ECHR is not binding. If we wish we can simply smile politely and say "get lost - this nation was free while you lot were under the thumb of absolute monarchs and dictators".

[Ted]

Simon
I was struck by a posting on Guido's site with a quote from Ivan Lewis (NuLab)

"that we have to trust and respect women. Give them the information and then ALLOW them to make the best choice for themselves." - that's what the issue is at heart, that some people believe the state is all and people are ALLOWED to do things v the view that we delegate to the State certain of our rights.

Perhaps it's not the traditional Conservative pose - more Tom Paine than usual - but I think any Bill of Rights should be about the limits of State Power than trying to define the rights of citizens & subjects.

There are two ways of viewing the English Constituion (Scots etc are different) Soveriegnty is the Queen in Parliament. Simply put:

- HM is an absolute monarch, limited by Parlament and therefore her subjects have no rights except those she, through Parliament deigns to give us.
- HM holds the throne with permission of the citizens and HM and her Government are subject to the Common Law and answerable to the people.

The Constitution seemingly has bits of both but the Magna Carta, Civil War, Glorious Revolution, Reform Act & Abdication point to more to the second than the first.

The freedoms we enjoy are our birthright but in the curious compromise we make are still subject to Parliaments will - for example Lord Mansfield decided Slavery was illegal in England because it was "so odious that nothing can be suffered to support it but positive law". In other words we are freeborn by right but an Act of Parliament could change that.

It's that threat which a Bill of Rights protects us. However because a Parliament cannot bind its successors imbedding the Bill would be difficult - not impossible in practical terms, as limits on parliamentary terms and other constitutional changes, while not unchangeble are accepted.

[Sean Fear]

The ECHR is practically non-binding, as you say, Richard. Greece for example, has refused to return property belonging to its former Royal Family, despite the ECHR ruling against Greece.

[TomTom]

The EHCR is the only check on British Judges. I don't know how many of those posting here have experience of British Judges, but impressive is not an adjective that should be applied.

I have no faith in the English judicial system. I have experienced little to give me any confidence in the case management skills, impartiality, intelligence, or even the integrity of judges..............then again I am not a Freemason so I might be biased.

[TomTom]

The ECHR is practically non-binding,

NO Court ruling is binding. No Court has executive power.

Let us look at the NatWest Three. Facing extradition to the US under the new Extradition Agreement (designed for people like Abu Hamza). The Americans put forward limited information in the application (as you might do in a terror case to protect sources) but this Case is Enron not Al-Qaeda.

The Law Lords refuse to hear the Case - amazing - a new Extradition Procedure and the Law Lords refuse to make a definitive ruling. So the case goes to the EHCR.

What else are they supposed to do when the Law Lords refuse to rule on this use of an Extradition Act designed for fighting terrorism ?

[Mark Fulford]

For unambiguous interpretation a Bill of Rights has to be very simple and short. Mine would consist of just five rights:

1. The right to do anything that is not specifically outlawed by act of Parliament.
2. The right to vote in choosing Parliament.
3. The right to fair treatment in Court.
4. The right to vote in choosing Court Judges.
5. The right for a free person to leave the country.

[Deputy Editor]

David Cameron's full speech about this to the CPS is now online.

[David Belchamber]

An English/UK Bill of Rights, founded on commonsense, should not be prescriptive but deal only with the big issues, freedoms and equality e.g "All English/UK citizens are equal in the sight of the law, regardless of age, sex, religion, race etc".
We should be able to consolidate and do away with much Nulab regulation, rather than legislation, that has been enacted in the last few years.
The main thing is to promise that all new legislation will go through Parliament in the proper way. Less legislation and greater attention to drafting would also be good.

[TomTom]

1. The right to do anything that is not specifically outlawed by act of Parliament.

So the New Government passes The Bill of Rights (Amendment) Act 2012 with the following provisions:

1) This Act of Parliament suspends Claus 1 of The Bill of Rights as enacted until further notice.

That takes care of that then

[TomTom]

English/UK citizens are equal in the sight of the law, regardless of age, sex, religion, race etc".

a) Gay Marriage is thereby legal

b) Act of Settlement is overturned

c) Any British Citizen can work on nuclear weapons systems within the Armed Forces

d) Voting Age can be 12 and 14 year olds can stand for Parliament

e) There can be no retirement age for doctors or judges

f) Abortion is illegal and unconstitutional

g) There can be no child fares or reduced fares for pensioners

These are just a few of the Court Cases which will flow from that simple sentence

[TomTom]

Now compare it with Article XIV of The European Convention

Article 14 – Prohibition of discrimination1

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

[Jon Gale]

Having given it some thought (over lunch), my proposed Rights are:

1. All adult citizens have the right to free speech, excepting incitements to violence or murder.
2. All citizens have the right to peaceably assemble, protest, criticise and demonstate.
3. Every citizen has the right to a free, fair, public trial, and to know the charges against them, call witnesses in their defence, etc.
3. Every citizen has the right to trial by a jury of their peers.
4. Police and other agents of the state require legal warrants for searching property, and surveilance.
5. Habeus corpus.
6. Right to travel around the country, and come and go from the country unless there is a legal warrant for the arrest or they are a witness in a court case.
7. All citizens are equal under the law.
8. Citizens have the right to self-defence and defence of their property from unlawful assult or theft
9. Citizens shall not be tortured by any agent of the state.

Ten points if you can spot the deliberate loopholes!

[EdR]

I've never really been in favour of an entrenched bill of rights or any such arrangements. All the same, I can see the logic in having one given the spectacular muddle.

I think the Bill of Rights should remain fairly short and to-the-point so that it can actually be committed to memory and published in a clear way.

I'm not sure if it's really feasible, but I'd quite like to see a codified list of essential responsibilities enumerated. e.g. obeying the rule of law, jury duty, paying taxes, etc. These wouldn't really change anything legally, I just think that it's to society's benefit that people's responsibilities are as clear as their rights.

And I would feel a lot happier if parliament had some entrenched rules of its own -- parliament banned from legislating retrospectively, and an assertion of the primacy of British law over European law in the event of a conflict of interests.

[Ted]

Mark - agree in principle but having re-read the English Bill of Rights if this was re-worked with a bit of US one its a pretty good model (needs to be worked through but coulds be a Charter of Freedom rather than Bill of Rights):
Englishmen possess certain civil and political rights that could not be taken away. These include
- Freedom of speech, the freedom of the press and free assembly
- Fredom to enjoy the right to privacy
- Freedom from threat of loss of liberty without right to a trial by Jury or due process of Law
- Freedom from cruel and unusual punishments, and excessive bail
- Freedom from fines and forfeitures without trial and due process of law
- Freedom from royal or executive interference with the law
- Freedom from taxation by royal prerogative, without agreement by Parliament
- Freedom to petition the King or Parliament
- Freedom from a peace-time standing army, without agreement by Parliament
- Freedom to have arms for defence, as allowed by law
- Freedom to elect members of Parliament without interference from the Sovereign or Executive
- Freedom of speech in Parliament,

[TomTom]

3. Every citizen has the right to trial by a jury of their peers.

In every single case ? where will you get the jurors from ?

[Voice from the South West]

I think that list Ted is something we all could find very agreeable.

[Jon Gale]

Ted,

where will you get the jurors from ?

Maybe performing jury duty could be defined as a "responsibilty" of being a citizen!

Or, everyone could have the right to a jury trial if they request it.

[Mark Hudson]

Will it enshrine the right as a member of the Conservative Party to object to Dave's modernising agenda and still be considered for a parliamentary seat?

[Mark Fulford]

So the New Government passes The Bill of Rights (Amendment) Act 2012 with the following provisions: This Act of Parliament suspends Claus 1 of The Bill of Rights as enacted until further notice.

TomTom, I'm glad you're having fun but there’d be no point in any Bill of Rights that could be so simply revoked or amended. It is my understanding that a key function of a Bill of Rights is to protect against rouge laws and governments.

A Bill of Rights can be either an inclusive or an exclusive list. It can list either rights you are given, or rights that can’t be taken away. I prefer the latter, i.e. the starting assumption that you can do anything, and that is the point of:

1. The right to do anything that is not specifically outlawed by act of Parliament.

[TomTom]

Maybe performing jury duty could be defined as a "responsibilty" of being a citizen!

The BCCI Case went on for 13 years - the Jubilee Line Case went on for 3 years...............I take it you have a lot of time on your hands and an understanding employer, and you can live on the pitiful expenses paid to jurors ?

[Anoneumouse]

Yes, I listened to his speech, however, it did seem a bit half baked. He made reference to Human Rights Act, not protecting us from the abolition of Trial by Jury and Habeas Corpus.

So when he says he wants a home grown, hard-nosed defence of our security and freedom, does this mean, that when he is in power, he will repeal the European Communities Act 1972

For was it not the European Union's Amsterdam Treaty and not the ECHR that paved the way to abolish Trial by Jury and Habeas Corpus.

[TomTom]

TomTom, I'm glad you're having fun but there’d be no point in any Bill of Rights that could be so simply revoked or amended.

Fun no ! I am stunned at how unworldly you really are. The European Convention looks very well-written compared to some of the things proposed.

You cannot stop Parliament altering all these things. What mechanism do you have ?

The 17th Century approach to make sure that Parliament had to meet at least once a year was that the Mutiny Act needed renewing annually. Yet we know the military are currently not being paid because of an EDS computer screw-up, yet we have no mutiny in the Armed Forces.

There is nothing to stop the Government dissolving Parliament and continuing to run the country

[TomTom]

BTW Will this "Bill of Rights" prohibit Secondary Legislation ?

[Mark Fulford]

You cannot stop Parliament altering all these things. What mechanism do you have ?

The Courts. Unlawful law can not be enforced.

[TomTom]

Yes but the Courts only exist in an Appellate function to ensure that and if you depend on English judges good luck, your experience has been better than mine.

The paperwork required and enormous delays because of incompetent adninistration in the court system are in themselves good reasons to appeal to the ECHR. One of the biggest complaints presented there is the length of time it takes a case to ever come to trial

[TomTom]

The Courts. Unlawful law can not be enforced.

Only the French Supreme Court can strike down Acts of Parliament, It is not permissible in England, USA or Germany for the Courts to strike out legislation.

In England you just declare Incompatibility as at present. The Government could simply ignore The Courts and continue to do as it wishes.

http://en.wikinews.org/wiki/Australian_Guantanamo_detainee_David_Hicks_gets_British_citizenship

Australian Guantanamo Bay detainee David Hicks has won British citizenship, opening the door for a possible bid to have him freed from the US detention facility in Cuba.

Justice Lawrence Collins of the British High Court has overturned the British Government's refusal of citizenship to Hicks, whose mother was born in England. Justice Collins said the Government had "no power to withhold or deprive citizenship".

Justice Collins said: "In my view it would be improper to fail to give assistance which otherwise would have been given, simply because the claimant was believed to be involved in terrorism and has not had any previous connection with this country."

The Government should tell Mr Justice Collins to "get stuffed" and refuse to comply. Australia will not let David Hicks land in Australia - after all with a British Passport he needs a Visa

[Richard]

TomTom is right regarding the supremacy of Parliament. Insofar as a British Bill would be considered a constitutional statute it would require express repeal. However, this would at least draw public attention to an infringement of rights. any government repealing "Government should not prohibit freedom of speech" would find itself under intense scrutiny. Indeed, the Queen might even feel herself obliged to refuse to give Royal Assent. A Constitutional convention might even develop that held the Monarch ought not to permit the express repeal of a British Bill of Rights.

Personally I think we should adopt the US Bill of Rights pretty much word for word but excluding the controversial second ammendment.

[william]

In the Victorian era Diceyan 'Supremacy of Parliament' has ultimately been harmful I think - it worked fine in Oakeshott's "Civil Society", but was easily hijacked by socialism to the ends of an "Enterprise Society", where freedom dies.............

Yes Simon, but a new Parliament can reestablish a civil society and overturn the socialist and other centralising bureaucratic measures which have invaded people's privacy and indpendence.

If Parliament is not sovereign, where do you start?

[David Belchamber]

TomTom @ 13.41: Ouch! You are quite correct. I was as guilty as Nulab in sloppy drafting. What I should have said was something like "the law is blind as to age, sex, religion etc". It is a matter of equality of access to the law that needs enshrining. The points you raise would be covered by specific laws.

[Richard Freer]

So, what it boils down to is that the merit of Cameron's plan is dependent on Strasbourg giving us 'leeway'. Well, excuse me while I laugh!!! Cameron doesn't have the guts to withdraw from the Human Rights Convention, although it is the only logical conclusion from his posturing. More Blairite, meaningless waffle from the man who will destroy the last vestiges of the Conservative Party.

[buxtehude]

I don't think we'll really know if Cameron's initiative is worthwhile or foolish (or even worse, insincere) until we see it fleshed out. This is an area where precision of thought is vital, and 'mood music' is destructive (because it raises a debate and then - if it is not sustained by clear argument - betrays it).

It will not be enough to say 'the detail will come later'. Not this time. If Cameron proposes such an important step, he must now show he has the intellectual rigour and the moral strength to think it through properly.

[Chris Ryder]

The views given by Mr Cameron was summed up wonderfully today for me by one of this country's leading Barristers as nothing more than 'politicial drivel' to simply appease our media's all out hatred of the Human Rights Act, the idea you can have another Bill of Rights Mr Cameron proposes sat alongside The Human Rights Act is not only daft and halfbaked but it will lead to one thing only, even more choas on where we stand with the issue!, the current Human Rights Act 1988 was passed into British law based on the European Convention on Human Rights which unlike Mr Cameron public claims is NOT foreign adopted legalisation as it was in actual fact draft in the first instance by our very own British Lawyers!!, so then all that is needed to resolve this issue properly is a clearer clarification on what the Human Rights Act does and does not imply, point by point, so we can cut out all these stupid over zealous & frivolous useage of this important fundamental piece of law and as for it supposedly 'obstructing' criminal law and counter terrorism as he also claims today then may I ask Mr Cameron to please present me with one 'actual' proven legal case to date where it has done so?, because I think even he would have serious trouble with that! ..and one point further if he is so keen to 'write up' a new Bill of Rights for the UK is this now a public acknowledgement that he himself does not even recognise the very existence of the Bill of Rights of 1689 which is already in force & written into the law books of this country?? my over all assumption here is Mr C has not only jumped on the wrong horse on this issue but he's happily charging the wrong way around the race track with it!

[SimonNewman]

William:
"If Parliament is not sovereign, where do you start?"

Well, I've been reading Hayek today ("Law, Legislation & Liberty")... AFAICS, Parliament is the sole legislature, but that doesn't entitle it to legislate contrary to the common law, which is justice. The common law is what gives us, as British citizens, our inalienable liberties, such as freedom of speech, freedom of assembly, no taxation except according to law (and certain taxes are against the common law of justice, eg poll tax), and the right to bear arms in our own defence and the defence of our liberties. The common law is essentially the settled will of the people, as it has evolved over time, it can change slowly, but it cannot be abolished through legislation.

[Richard]

And the common law has decreed that Parliament is supreme. Lord Justice Coke once suggested that Acts of Parliament could be struck down by the common law but this is not a view that has been accepted or a process that has even occurred over the centuries.

Chris Ryder, the 1689 Bill of Rights is somewhat lacking as I have pointed out above. The American Bill of Rights was based on the 1689 Bill of Rights and is more comprehensive. Most importantly it doesn't presume to give us out rights. It assumes what we are born with them. The HRA does not.

[Richard]

A British Bill of Rights:

Article I

Parliament shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article II

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article III

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article IV

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article V

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article VI

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article VII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article VII

The enumeration in this Bill, of certain rights, shall not be construed to deny or disparage others retained by the people.

[Richard]

Correction: Article V should miss out the words "of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law"

[Richard]

And Article VI should replace united States with United Kingdom...

[Rick]

unless on a presentment or indictment of a Grand Jury

These were dropped in the 1920s or 1930s in England about the same time coroner's juries stopped having to view the corpse

[Rick]

Article I

Parliament shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

There goes The Act of Supremacy and The Act Of Settlement..............you have started writing a Constitution..........where this ends could be anyone's guess

[Chris Ryder]

Be as it may Richard but my point was does Mr Cameron recognise the very existence of 'the Bill of Rights' in law, before possibly blundering ahead with drafting yet another one as that in its own right may prove quite legally challenging in itself in practice, because is not right to say that The Bill of Rights regardless of its contents, or lack of, is legalisation that reins supreme over ordinary 'Acts' of parliament and it can not just simply be over written? as I believe High Court Judges of the law have previously outlined this very point, but which ever way my main point remains that Mr Cameron has just drummed up a lot of politicial waffle today to appease a media with its sights on destroying The Human Rights Act brought about mainly by total misinformation BY the likes of the media, Mr Cameron and others and what we'll end up with is yet another piece of legalisation that will be 'equally' be misinterpreted if we keep repealing Act after Act or even sticking an Act on top of another Act which will do nothing but confuse everyone still further than simply taking the logical route and clarify matters on what we've got already in law!

[SimonNewman]

Richard 20:16
"And the common law has decreed that Parliament is supreme. Lord Justice Coke once suggested that Acts of Parliament could be struck down by the common law but this is not a view that has been accepted or a process that has even occurred over the centuries."

Laws that can be seen to be against the common law do get repealed regularly - from the Community Charge to (now) the HRA. I think you're talking about the non-ability of judges to strike down Parliamentary legislation, I agree that that is and should be part of the common law. OTOH my point is that Parliamentary legislation that is against the common law is illegitimate and carries no moral force requiring obedience (sans threat of force). In most cases of bad law, civil disobedience is morally justified (eg I'd say to the BBC license fee), in extreme cases more extreme measures, as in 1688.

[Chris Ryder]

I think its also fair to comment that if ordinary people all round are having great difficulty with the clear understanding of this type of legalisation properly one has to ask the simple question is it really worth us trying to seek it anyway? as after all we have come down the centurys in this country not resorting to the use of such a law on an every day basis until now and as we have seen in many a case it is only being used by the those who seek nothing but to exploit legal weakness or loopholes to avoid due process of law in say areas of criminal or immigration matters and if its the European Union telling us 'we must have it' then it does nothing but clearily shows we no longer have any real control over our own governance in being able to lay down our own laws which is a pretty sad state of affairs because in all reality Human Rights laws now to a lot of people have become nothing more than a full time joke not living upto to what people with basic ounce of common sense assumed it would be drafted for, but if human rights law is so we can just get up on our moral soap box to the rest world to say 'hey look we have human rights standards' yet while on the other hand committing ourselves to an 'illegal' war without UN authority, or allowing dodgy CIA planes to use our airspace for less than moral means our Human Rights morals do end up getting just that bit flushed down the 'S' bend, with the world likely in return to stick its two fingers upto us anyway!

[Phil]

A Bill of Rights should redirect the emphasis to promote the freedom of those who do what is right, the law-abiding. So it could include the right to (not necessarily in order of importance):

1) Freedom of speech
2) Freedom of Association
3) Freedom of religion and religious practice
4) Trail by jury
5) To live in peace and security, without the fear of crime, and without encountering violence, intimidating and threatening behaviour, with a duty on the state to enact law and order to ensure these rights.
6) The right of family life, including the right for parents to decide on discipline, education and upbringing of their children, and the right for families to be free from interference from the State.
7) The right to life (for those who do not shed innocent blood) from conception to natural death
8) Freedom from unwanted intrusion into privacy
9) The right for law-abiding individuals to be free from curtailments to liberty, state intrusion and from the state holding unnecessary personal details (i.e. no ID cards!)
10) Our right as a nation to not be subject to the laws of other nations and those of international institutions.

As for responsibilities side, could recognition of individual responsibility be written in – i.e. the criminal is responsible for his decision to commit crime, and not society or poverty. And the duty of Government to defend the people and the nation.

The Government’s hysterical response (as reported on the BBC News site) to David Cameron’s initiative shows they must be rattled! The Lord Chancellor is reported as saying Mr Cameron is trying to rewrite human rights because "they seem inconvenient". Yes, the HRA is “inconvenient” - to the prevention of crime, and to protection from criminals and terrorists! This response says something about whose ‘rights’ they prioritise, despite Mr Blair’s wishes about rebalancing the criminal justice system.

[Richard]

"There goes The Act of Supremacy and The Act Of Settlement..............you have started writing a Constitution..........where this ends could be anyone's guess"

Oops! Good point. Remove that bit then.

[Richard]

"8) Freedom from unwanted intrusion into privacy"

Presumably the responsibilities going with this would include the responsibility not to behave in a way that attracts media attention e.g. celebrities doing drugs.

It's a good list but I'd prefer it if each article began with words like "the government shall not infringe".

I like the idea of responsibilities regarding crime, although this would probably come across as too politically partisan.

I am uncomfortable about the idea of a list of duties as it doesn't chime well with this country's legal traditions. For example, there is no duty to act as a good samaritan because this would be seen as an infringement of freedom. We're much keener on negative rather than positive liberty.

[TomTom]

) Freedom from unwanted intrusion into privacy"

Ah so the Govt won't push the Eu into storing Emails and telephone records for 3 years as at present ?

http://www.statewatch.org/news/2002/aug/05datafd1.htm

http://www.statewatch.org/news/2002/may/15epvote.htm

http://www.statewatch.org/news/2002/may/18europol.htm

[TomTom]

10) Our right as a nation to not be subject to the laws of other nations and those of international institutions.

Bill Of Rights 1689

Nothing in that list is not already covered in The Human Rights Act 1998 and the European Convention...........I am trying to see what you are proposing that is markedly different

[James Maskell]

Constitutional reform on a level not seen for centuries and its the Tories proposing it!

I am willing to bet all my earthly goods that Cameron will not do this after a Tory win. He'll find that its a legal minefield. I reckon he'll find out he cannot simply repeal the Human Rights Act and then pass a Bill of Rights and he will bottle it. I am calling it, its another pledge to satisfy the right wing that wont see the light of day. There must be more constitutional changes that would have to be effected prior to this that Cameron has not mentioned. The EU is going to be pretty angry as well.

[TomTom]

Of course he won't do it. The Tories had 18 years in power and did not do it, in fact they centralised power and changed the Constitution dramatically with the Single European Act, Maastricht, Rate-Capping, Abolition of GLC, Appeals on Planning Decisions to Dept of Environment.................

This is just kite-flying.................but the foundations of this Realm are very unsteady and at some stage the polity is going to face major challenges akin to those in 1641 or 1848 with The Chartists.

[Ted]

TomTom & James
Some good points - though from TomTom's jaundiced view of the Judiaciary. However I still stand forthright about trial by jury.
1 No trial should last years; if the law is so unclear and the evidence so difficult to find & explain then don't prosecute. Change the law.
2 Juries aren't perfect but they are IMO the least imperfect. Juries have in the past made not guilty decisions because they reflected modern society rather than the letter of the law - forcing legislative changes. These might not have been great in some eyes (juries refusal to class as obscene publications & videos for example, juries refusing to pass guilty verdicts in murder trials when faced with capital punishment) but they reflect better justice rather than legal points.

What did strike me going throug the various source documents (Magna Carta, Bill of Rights, Tom Paine & US Constitution) was just what a revolutionary document the 1689 Bill of Rights is. Shorn of the anti-Catholicism and the other contempary issues (which also applies to the US Constitution) it still stands the test of time.

The underlying issue is that of the European Court of Human Rights and our Governments acceptance that it stands in a superior position to Parliament & the UK Courts in terms of definition of the European Convention on Human Rights. As Sean points out it doesn't in fact have this power - it is the acceptance by Government of its de facto supremacy that is the issue. Updating the 1689 Act and in particular re-inforcing in statute that part of the oath "that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm" would be a start.

To give the decisions of the ECHR an advisory role to the Supreme Court rather than a pre-eminent role as is the case in Common Law with decisions of other Common Law juristictions (US & Commonwealth) in interpreting the Law would I think be an improvement.

No Bill of Rights can ultimately overturn the supremacy of Parliament or bind Parliament and that is in itself a strength of our system (otherwise Catholic citizens wouldn't have any civil rights!) but I think a Bill which took from our key constitutional statutes the key foundations of our liberties and referenced them and was placed in the centre of our constitutional settlement would be a step forward (and is Conservative in truly conserving our ancient liberties). Some pre-eminacy by putting the Bill above other Law and only permitting it to be changed through two thirds votes in both huses would provide some protection.

UK citizens are rarely exposed to those statutes as the building blocks of our nation unlike US & Continental States. It would not then be as James declares a massive Constitutional reform but a re-statement of those Rights both inborn and conferred.

Is it wrong that the Executive should be reminded that they are merely passing through and underlying their powers and privileges are over a thousand years of stuggle, of nation building, of evolution and compomises that created a great state.

As for EU etc, they accept (may not like) that the German Constitution limits the EU in terms of the German-EU relationship and same applies elsewhere. That the UK merely re-states its basic constitutional settlement and declares that it is Sovereign isn't an attack on the EU or the European Convention.

[TomTom]

1 No trial should last years; if the law is so unclear and the evidence so difficult to find & explain then don't prosecute. Change the law.

It is not the law, it is not the jury; it is the judge who controls the case. These were not criminal cases but civil litigation.

If you have ever pursued a case in court Ted, ever litigated, ever seen what a tangled mess a judge who has not read the papers can make when assisted by a barrister to turn the case upside down and use delay to prolong matters through adjournments you would see that the TV image of the judiciary is so favourable as to make you wonder why they don't get better scriptwriters in real courts.

Remember Richard Ingrams comment about thinking you are entering a cathedral to find you are in a casino ?

The fact is until you have experience the full courtroom with our bewigged friends you do not know how mediocre the process is. Look at the shambles of the family courts, the disaster of the divorce courts, and the abysmal performance of some of the High Court Judges.

In his annual Mansion House speech to the City of London's great and good, King said the 'most expensive fishing expedition in history' ended as a comprehensive victory for the Bank of England, both on the substance of the case and on costs.

'A system that is powerless to prevent a case so hopelessly misconceived continuing for thirteen years requires examination,' he said.

'I very much hope that the government will look carefully at this case, learn the lessons, and take steps to ensure that such an outcome can never occur again,' he added.

King put much of the blame for the trial on the UK's adversarial system, which imposes huge costs on litigants and defendants alike, and quoted the trial judge as saying the legal system appears to be 'a profitable monopoly of the lawyers'.

'BCCI showed that perception was indeed reality,' said King

The BCCI collapsed in 1991 with debts of 16 bln usd in what is now considered to be as the 'biggest fraud in the banking history'.

The litigation started in 1993, but only reached the court in Jan 2004 -- the first lawsuit filed against the BoE in its 300-year history.

The 1 bln stg lawsuit was brought by the liquidators of the BCCI, Deloitte, against the central bank and 22 of its present and former staff, and collapsed when all the allegations were unconditionally withdrawn in the High Court late last year. The trial judge said the case was built 'not even on sand but on air'.

The collapse of Jubilee Line fraud case has led to a reported £60m bill for court costs and an inquiry ordered by the attorney general, who says a similar situation must not arise again.

But as legal affairs analyst Jon Silverman reports, this call echoes the aftermath of previous costly cases.

In 1992, the Appeal Court described the marathon Blue Arrow fraud trial, which cost the taxpayer £40m, as a "costly disaster" which must never be repeated. But at least that case, the second-longest criminal trial in English history, came to a conclusion with jury verdicts.

The Jubilee Line trial did not even get that far and the inquiry announced by the attorney general will be expected to point up some significant lessons.

One perennial issue, which will be raised yet again, is the capacity of juries to cope with the complexity of such a case.

Ever since the Roskill Committee recommended in 1986 that, in fraud trials, the jury should be replaced by a judge, sitting with lay assessors, the argument has swung back and forth.

It is sometimes forgotten that the 2003 Criminal Justice Act provided for jury-less fraud trials. But because the issue is so divisive, this section has not been implemented.

The trial had gone on so long, with so many delays, that it was agreed the jury could not hope to remember the evidence. Furthermore, the jurors were beginning to mutiny. The defendants themselves, all of whom denied the charges, were also suffering under the oppressively slow prosecution.

The European court of human rights has recently found in another case that the duration of legal proceedings was excessive at four years and nine months.

One defendant, Mark Skinner, accused of passing confidential information to the consultants RWS Project Services Ltd (now Capital Project Services Ltd), said yesterday: "I feel only anger at a prosecution which has destroyed my business and tortured my family for over seven years."

The trial judge, 69-year-old Ann Goddard QC, also saw the collapse of persistent efforts to keep the jury on board for an unprecedented length of time.

Many discussions about the problems and protests of the jurors took place in chambers with the press excluded.

But even when the discontent seeped out into open court, the public was prevented from realising what was going on by a sweeping ban on reporting.

The Guardian made unsuccessful attempts to have the extraordinarily long ban lifted, as the trial neared two years in total and the problems mounted.

But yesterday, as the trial collapsed and many questions about its management began to be asked, his tone had be come markedly more sombre. He told the court that it had only succeeded in sitting for 40% of the available time. In the last 21 months, only for 17% of the time had the jury actually been able to hear any evidence.

[TomTom]

It would be good if people stopped thinking the Courts deal only with Criminal Matters - much of their work is concerned with Civil Cases which are probably the bulk of the work.

[SimonNewman]

Ted 09:53

Great post, I agree entirely and I hope our leaders read it too! :)

"What did strike me going throug the various source documents (Magna Carta, Bill of Rights, Tom Paine & US Constitution) was just what a revolutionary document the 1689 Bill of Rights is. Shorn of the anti-Catholicism and the other contempary issues (which also applies to the US Constitution) it still stands the test of time."

Yup - the anti-Catholicism is outmoded now since English Catholics as a group are no longer a threat to the State, and the Bill lacks a defense for freedom of speech outside Parliament, but otherwise it stands up well, with large chunks of it in the US BoR.

"The underlying issue is that of the European Court of Human Rights and our Governments acceptance that it stands in a superior position to Parliament & the UK Courts in terms of definition of the European Convention on Human Rights. As Sean points out it doesn't in fact have this power - it is the acceptance by Government of its de facto supremacy that is the issue. Updating the 1689 Act and in particular re-inforcing in statute that part of the oath "that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm" would be a start.

To give the decisions of the ECHR an advisory role to the Supreme Court rather than a pre-eminent role as is the case in Common Law with decisions of other Common Law juristictions (US & Commonwealth) in interpreting the Law would I think be an improvement."

This is exactly the right way to go about it IMO.

[TomTom]

► General measures (constitutional, legislative or other reforms, including the setting up of effective domestic remedies) to prevent new violations similar to those found in the judgments, notably:

* § Solutions to the systemic problem of excessive length of judicial proceedings, and/or setting up an effective domestic remedy in this respect, in 22 countries (cases against Austria, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, Netherlands, Poland, Russia, San Marino, Slovakia, Turkey, Ukraine, the United Kingdom);
* § Comprehensive reforms to solve the structural problems of non-execution of domestic judicial decisions in Moldova, Russia and Ukraine, revealed by numerous judgments and complaints;
* § Reforms to protect the right to liberty or to respect for family or personal life of mentally disabled persons in Bulgaria (Varbanov and 2 other cases), Germany (case of Storck), Portugal (case of Magalhães Pereira no 2), Slovakia (case of H.F.), Russia (case of Rakevich) and the United Kingdom (case of Benjamin & Wilson);
* § Measures adopted or under way for the effective protection of detainees’ rights in 16 countries (Bulgaria, Estonia, France, Germany, Greece, Hungary, Ireland, Italy, Moldova, Netherlands, Poland, Romania, Russia, Turkey, Ukraine, the United Kingdom);
* § Further progress in the execution of the Cyprus v. Turkey judgment, inter alia with regard to the issue of missing persons, freedom of religion of Greek Cypriots in the north of Cyprus and property rights of displaced persons;

Current rulings of the ECHR

I am disappointed that neither The Law Lords nor the ECHR have chosen to review the 2003 Extradition Act under which the NatWest Three are to be extradited to the USA.

I have no time for The NatWest Three but think this Extradition Act should be reviewed as it is so biased against British Citizens and in favour of US prosecutors

[Ted]

TomTom

I think we actually agree - I wasn't only referring to criminal trials but think that in both civil & criminal there should be a time limit on trial length. If the law on Fraud is so obscure then it is not equitable. Prosecutions that cannot obtain a clear view, explainable to a jury cannot be fair. Perhaps it means that in some commercial matters the guilty escape, so what? - a legal system that collapses under the obscurity of some civil laws is not supportable.

I rember watching the Kennedy case in Florida (I was ill so had lots of time). What struck me in the end was that the core evidence was nearly hidden by the detail surrounding it (the physical evidence in terms of grass pollen confirmed the defendants story and showed the complainants story to be incorrect). It could have been much shorter except that both defence & prosecution wanted to influence the jury with extraneous detail and celebrity witnesses.

Prosecution should be told that in complex cases they may present x hours of evidence & similiar for defence (perhaps 4 days a week for 4 weeks?).

Our system is based on presumption of innocence, with doubt at its heart. Unless in civil or criminal cases a degree of certainty can be produced that is clear and unambiguous then let the status quo stand.

[Ted]

TomTom

The ECHR might well produce good and much needed rulings but it also extends the meaning of the Convention and in doing so acts in a quasi-legislative way. Picking one example I happen to think its rulings on gay servicemen were good but also that actually it was a matter for the UK Executive & Parliament.

A UK Bill of Rights properly drafted would make the Extradition Act void if the Supreme Court (acting as a Constitutional Court) declared it at variance. Such a sanction would be ensure bills were drafted better, the HoL acted in a firmer manner in its prime purpose of examining bills and the executive more careful of legislation.

Despite Tony's claims we are facing a new situation and need 21st Century responses (which seem more like 16th century & earlier ones) there is little (nothing?) that is not already covered by existing common or statute law. Less law, better drafted & discussed - and that includes EU directives _ is what we need.

[TomTom]

Picking one example I happen to think its rulings on gay servicemen were good but also that actually it was a matter for the UK Executive & Parliament.

Sorry Ted, but this Case was unopposed in the ECHR. The British Govt did NOT put up a counter-case to something they wanted to introduce but did not dare put through Parliament.

You will find that very many cases on gay rights before the ECHR were unopposed by Her Majesty's Government and were therefore won by default.

There can be no Supreme Court under English Law. The Judicature Act 1869 created the Law Lords as a final court of appeal, but the concept of a Supreme Court is anathema to a Sovereign Parliament.

In England the Power of the King went to Parliament in 1649 and in 1689 because it was Parliament versus the Stuart Dynasty...........it never ever made The People sovereign.

[TomTom]

http://www.wcl.american.edu/hrbrief/v7i3/european.htm

n the wake of the United Kingdom's January 12, 2000, decision to eliminate all restrictions on gays serving in its military forces, and the ECHR's findings that neither the investigations conducted into the petitioners' sexual orientation, nor their discharge on the grounds of their homosexuality were justified under Article 8(2) of the European Convention, it is important to realize what was not addressed by the Court. Most significantly, the Court refused to address the issue of whether the former MoD policy constituted discrimination on the basis of sexual orientation. This refusal is attributable to the fact that the Convention itself does not cover discrimination on this ground. Article 14 of the Convention provides only that "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, . . . [etc.]."

Thus, the true issue underlying both the Lustig-Prean and Beckett and Smith and Grady cases has yet to be adjudicated by the ECHR.

So it was not sexual-orientation which provided the basis of the ECHR Ruling

[ToMTom]

http://www.telegraph.co.uk/htmlContent.jhtml?html=/archive/1998/06/06/ngay06.html

See Ted.........Saturday 6 June 1998 THE prospect of homosexuals being admitted to the armed forces increased last night when George Robertson, the Defence Secretary, said the ban should "in principle" be lifted.

BEFORE the ECHR even looked at this Case in 1999

[TomTom]

http://www.telegraph.co.uk/htmlContent.jhtml?html=/archive/1996/05/13/ngay11.html

Monday May 13 1996
Issue 382

"
Labour would accept Euro ruling on gays in Services
By Jon Hibbs, Political Correspondent

LABOUR would accept a ruling from the European Court of Human Rights to outlaw the ban on homosexuals in the Armed Forces if the party formed the next government. Although the Commons vote upholding the existing ban showed that the party was split on the issue, sources made clear yesterday that a Labour administration would willingly implement any verdict of the Strasbourg court.