Scottish Independence: “England has no superior under God”

Leading European advocate Scott Crosby has warned Scots that they
could be set to lose their human rights by voting 'no' in next year's
independence referendum Photo: Scott Crosby


“England has no superior under God”

The Threat to withdraw the UK from the European Human Rights Convention

by Scott Crosby

Unlimited state power puts the state before the individual and denies fundamental freedoms and the rule of law. It is a great evil. In this respect the two most important legal acts since the Second World War are the Universal Declaration of Human Rights and the European Convention of Human Rights which gives effect to the Declaration in Europe. The Convention protects everyone in Europe against abuses of state power. Only Belorussia refuses to be bound by it.

Government ministers are saying that the UK should withdraw from the Convention. If it did there would be no external protection against abuses of power by the British State and the Scottish electorate would have to consider very carefully whether or not it wanted to live in a country where state power could be abused with impunity from external constraint. If it wanted to live in a full function democracy which respected the international human rights standard it would have to elect to leave the British Union in the Scottish referendum.

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It might help to understand the deep motives for the threat to abandon the Convention (and betray the people). Since the British constitution is the English constitution in all but name we have to go back into English history.

In the preamble to the Ecclesiastical Licences Act 1533, by which Henry VIII stopped the transfer of a levy to the Vatican, it is affirmed that, apart from His Grace, Henry himself, England had ‘no superior under God’. This meant that the English monarch was subject to no foreign or even to any opposing domestic power.

This unconstrained power was eventually passed from the monarch to Parliament as a result of the English civil war. This power finds its expression still today in the English constitutional doctrine of the supremacy of parliament, whereby the British Parliament (i.e. the old English Parliament with the addition of Scots and Irish members), can do whatever it likes, except bind its successors. The doctrine of parliamentary supremacy means that Westminster has the power under the constitution to set up the Scottish Parliament one day only to do away with it the next.

This is a unique doctrine. In fact to call it a constitutional doctrine, is a misnomer, because the whole point of constitutions is to limit state power not to grant unlimited power. A constitution conferring or recognising unlimited state power is in fact not a constitution at all, at least not in the modern sense of the term.

The duty of the European Court of Human Rights to apply the European Human Rights Convention against States and thus to determine what the human rights obligations of states are, is resented by the current government of the UK. They do not think it acceptable that a “foreign court” as they put it, may tell the British Parliament what to do. So the government or its spokesmen are openly saying that they will withdraw Britain from the Convention.

This ignores the fact that the Human Rights Court is not a foreign court but one set up largely at the instance of the UK with jurisdiction over all States that have accepted formally and unconditionally to be bound by its judgments. It is therefore a ‘shared court’ but it is far from being foreign.

However, the Human Rights Court is an opposing power. It is a constraint on the power of Westminster. And the predominantly English difficulty with accepting the power of foreign institutions, over which the UK has no power of veto, can only be understood by reference to the doctrine of parliamentary supremacy and to its antecedent, the doctrine of absolute sovereign power proclaimed by Henry VIII.

When therefore the ruling party says that it will remove the UK from the jurisdiction of the Human Rights Court it is in fact re-stating Henry VIII’s conviction that England has no superior under God, albeit (perhaps) subconsciously.

Scots should be aware of this and think about what it implies in general before voting in the independence referendum in 2014.

They should also beware accepting the authority of any government that threatens to deny individuals the protection of the European Court of Human Rights, because that denial would mean that whatever human rights protection were left would be at the mercy of the doctrine of parliamentary supremacy and changing legislative moods.

Assuming that withdrawal were government policy at the time of the referendum, that very English threat to fundamental rights would constitute in itself a valid and necessary reason for voting to restore Scottish statehood.


Scott Crosby is a partner in Brussels-based legal practise Kemmler Rapp Böhlke & Crosby. Mr Crosby retains copyright over the above article.

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Showing 5 reactions

commented 2014-02-17 02:08:19 +0000 · Flag
In UK politics the real UKIP is the equivalent of the SAS, the SBS and all the other units of our world-leading UK Security and Defence Forces.

The recent accession of a small group of minority extremists to a temporary and illegitimate position of power in Scotland is far from being representative of the real UKIP philosophy or policies. That minority will soon be exposed for what it is – a group of self-interested opportunists who do not represent the majority of moderate UKIP supporters in Scotland.

Those who are true UKIP Scotland members and supporters are and will continue to be an increasingly effective force for the main UKIP Party whose members achieve phenomenally positive results with minimal resources, protecting the UK from destructive actions that attempt to destroy the UK.

Members and supporters believe in the integrity and historic and current value of a United Kingdom.They are Scots, English, Welsh and Irish who are committed to protecting the UK from negative and destructive forces. We are dedicated to protecting the most precious of assets that we in the UK value above all else…a culture that truly values being British and in control of our own destiny.

“Britishness” is founded on Christian AND Humanist principles. It is not Islamic, Bhuddist, Hindu, or Rastafarian. It is not English, Scottish, Irish, Welsh, Syrian, African or even American. It is not Protestant or Catholic. It recognizes the right and duty of truly British people to protect the Christian-based culture of Britain, not to destroy or to alter it in favour of the religions and/or cultures or politics of other countries.

Apart from some low-grade extremists that can be found anywhere, in any country, we are a unique, welcoming and forgiving community of people who are not prepared to allow others to destroy us or British values. We are not what our recent governments have portrayed us to be through their funded propaganda ‘machines’.

We have long since passed the point when large, opportunist sections of the media, that so often disingenuously professes to be British, should have stood firm against the onslaught of external and destructive forces. Instead, it now sells its soul for revenue rather than protecting the principles that allowed it freedom. If it has an individual or collective conscience now is the time for the British press to rally around the people and the culture that allowed it to represent the country that so many seek to join because its former strength was founded in being British, protecting ‘Britishness’ and opposing all who seek to destroy it.

The press’s sales figures continue to plummet in line with its integrity. It could do far better.
commented 2014-02-03 21:46:33 +0000 · Flag
An interesting judgement, Jim, but to whom are you referring? Can you identify the idiot for us.

Another relevant point is that acceptance of the jurisdiction of the ECHR is a primary condition of membership of the Council of Europe. Rejection of that jurisdiction would therefore constitute the UK’s resignation from the CoE, which would have serious political and economic consequences.
commented 2014-01-31 20:26:05 +0000 · Flag
What an ignorant IDIOT!
commented 2013-10-28 19:21:57 +0000 · Flag
I agree with the author, although I don’t think the campaign to withdraw from the ECHR will succeed. If it did, its only legal effect would be to remove the UK from the jurisdiction of the European Court of Human Rights (incidentally, the one and only “European Court”).

That would remove an irritation that is currently annoying the adherents of the fabulous “sovereignty of Parliament” in London, but it would not remove the UK’s obligation to observe the entire range of human rights from A to Z as laid down by the United Nations.

That legal obligation remains, quite separately from the European tribunal, and is not dependent on it. What withdrawal from the ECHR would do would be to make it so inordinately difficult for the individual to pursue a case against his or her own government that hardly anyone would attempt such a move – which is no doubt a substantial part of the motivation behind the threatened withdrawal from Strasbourg.

The only definite recourse thereafter would be to bring the case before the United Nations High Commissioner for Human Rights in Geneva, or at European level take it up with the OSCE’s Office on Democratic Institutions and Human Rights (ODIHR) in Warsaw. Both are notable defenders of the rights of individual citizens, and are no strangers to confronting rogue governments with their sins.

However, ditching the specialised expertise of the Strasbourg court would make the UK an international pariah overnight, and fly in the face of everything that has been achieved through generations of bloodstained struggle to curb autocratic tendencies and the self-assumption of uncontrolled power by governments everywhere.
published this page in News 2013-10-27 23:39:15 +0000