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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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.