Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?

Theresa May’s Government has floated the idea that the next election might be contested on a pledge to incorporate all the rights guaranteed by the European Convention on Human Rights, while leaving the European Convention and the jurisdiction of the European Court of Human Rights. There are plenty of arguments against such a course – not least the practical one that the midst of tricky Brexit and post-Brexit negotiations might not be the best time to take on an avoidable burden of human rights law reform – but it is in some ways a more coherent policy than the previous one which, insofar as it could be discerned at all, was to dilute some of the Convention rights in UK law while agreeing to abide by the decisions of a ECtHR which would not agree to any such dilution.

Critics have largely concentrated on the political and diplomatic pitfalls of abandoning the European Convention, and with it the Council of Europe. Would it really be right that Britain should join Belarus, Kosovo and The Holy See as the only sovereign nations outside the Council of Europe? On the other hand, do we really want to be part of a human rights club that includes Vladimir Putin’s Russia?

But leaving aside these international issues, should Theresa May’s proposal become official Conservative policy, it will mark the final acceptance by the Conservative Party that the common law alone is inadequate to protect human rights, and a recognition that “universal human rights” have a central part to play in British law.

But what are these “human rights?”

Should they all be equally protected by law?

Are some rights more universal than others, and if so how do we decide which are deserving of either protection or special status?

It is easy for lawyers to become complacent and to stop thinking. Nowhere is this tendency better demonstrated than in the law of human rights where each side of the debate tends to dig itself into deep trenches, while being more willing to engage in bad tempered name-calling than in constructive debate.

Barristerblogger is therefore proud to publish this exclusive guest post by the country’s leading conservative philosopher and thinker, Professor and Bencher of the Inner Temple, Sir Roger Scruton.

The European Court of Justice and the European Court of Human Rights are courts whose decisions are made by judges trained in jurisdictions with distinct traditions of legal reasoning, many from former communist states in which law, as an independent source of authority, was deliberately extinguished. These judges cannot be removed from office by any procedure that a citizen could initiate, and their judgments override the legislative and judicial decisions of sovereign countries under their sway. This opens an avenue for transnational elites to impose their will on people in defiance of local customs and national sovereignty. Continue reading “Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?”

Professor Jay was brave but wrong to agree to chair the child abuse inquiry

I hate to be Cassandra yet again, but Amber Rudd has made the wrong decision in appointing Alexis Jay as the new Chairman (and like it or not, “Chairman” is the word used in the Inquiries Act 2005 under which she has been appointed) of the “independent inquiry into child sexual abuse” (“IICSA”); and Professor Jay was wrong to accept the appointment.

This is not, as some have suggested, because a social worker like Professor Jay is in some way compromised when the Inquiry examines the conduct of other social workers. She has in fact been an inspector of social work since 2005, criticism of other social workers has been her business for some time and she is well qualified to comment on social work failings should she come across any.

Nor is it because of any personal failings. Many of those who have worked with Prof Jay speak highly of her, and her report into sexual exploitation in Rotherham between 1997 and 2013 has been widely praised. Continue reading “Professor Jay was brave but wrong to agree to chair the child abuse inquiry”

This is no time for rejoicing: Erdogan is pulling Turkey towards despotism

There has been much rejoicing in the West that the attempted military coup in Turkey has been defeated by “people power.” People of all political persuasions, it has been said, including many strongly opposed to the governing AK Party, came onto the streets to defend democracy against a military putsch. They did so in answer to a call from President Erdogan in his now famous Facetime broadcast which was then repeated from minarets all over Istanbul and Ankara. There were acts of great bravery as unarmed civilians stood in the way of tanks, as well as scenes of horror, not least when bewildered conscripts appear to have been lynched. 

Meanwhile, pictures have been posted of the alleged coup leaders, now being held in custody. They look haggard and worried, as well they might.  Continue reading “This is no time for rejoicing: Erdogan is pulling Turkey towards despotism”

Don’t abuse the Brexit litigants: their action shows that we live in a free country

The law firm Mishcon de Reya is bringing an action to force the Prime Minister, whoever she (or just conceivably he) may be, to obtain Parliamentary approval before issuing that all-important Article 50 notification.

The question in issue is a deceptively simple one but it has divided lawyers. Can the Prime Minister invoke Article 50 as an act of Royal Prerogative; or will she need to persuade Parliament to pass legislation before doing so? Continue reading “Don’t abuse the Brexit litigants: their action shows that we live in a free country”

Why is it wrong to overturn wrongful convictions, Mr Bone?

It is a pretty safe bet that whenever Peter Bone MP opines on the criminal justice system he is wrong. He has voted to lower the abortion limit to 12 weeks, to retain the criminal offence of blasphemy and to reintroduce the death penalty (although not for blasphemy). One of his typical interventions last year was to sponsor a bill which would have forced judges to pass lengthy prison sentences even when they knew that it would be unjust to do so.

In fairness to him, he is wrong about plenty of other things too. In 2010 he signed an Early Day Motion in support of homeopathy (Jeremy Corbyn and Diane Abbott were fellow signatories, as well as the completely barmy Conservative MP David Tredinnick, who believes in astrology). Continue reading “Why is it wrong to overturn wrongful convictions, Mr Bone?”

The law on transsexual sex has lost touch with humanity and common sense

There has been widespread concern expressed at the 8 year prison sentence passed on Gayle Newland, the 25 year old Chester University student who was recently convicted of assaulting her sexual partner by penetration.

Just weeks later, female to male (but pre-op) transsexual, Kyran Lee, appeared before the Lincoln Crown Court and received a suspended sentence for assault by penetration. The judge’s relative leniency spared the Ministry of Justice the dilemma of deciding if he should be sent to a male or female prison.

There were many differences between the two cases, not least the fact that Newland had been convicted after a trial, whilst Lee pleaded guilty. Lee also faced only a single count.

Nevertheless, the different treatment afforded to the two defendants was striking, and it perhaps serves to emphasise the confusion that now surrounds the law relating to transsexual people and the criminal law.

From shortly after Newland was dragged to the cells, screaming “I’m scared!” press comment has been almost universally critical of HHJ Dutton’s sentence (even though he was faithfully following the Sentencing Guidelines). An entirely unscientific online poll by the Daily Telegraph found that 72% of respondents thought the sentence was too severe, and a similar poll for the Chester Chronicle produced nearly identical results.

Gayle Newland: 8 year sentence widely criticised
Gayle Newland: 8 year sentence widely criticised

Continue reading “The law on transsexual sex has lost touch with humanity and common sense”

The Government’s Policies on the Human Rights Act and the EU are an incoherent muddle

The vast majority of Conservative MPs are united in the belief that Parliament should be sovereign and the British Supreme Court should be supreme. Yet the Government has embarked on a plan which (if it succeeds) will effectively entrench the precise opposite of what its MPs actually want.

The problem arises from a misunderstanding of the Human Rights Act and a failure to address the constitutional realities of EU law.

On the Human Rights Act, the Prime Minister has instructed Michael Gove to press ahead with preparations for its repeal and replacement by a British Bill of Rights.

Any sensible Conservative ought to realise that the repeal of the Human Rights Act is not just unwise but, if you are worried about Parliamentary sovereignty and the supremacy of our courts, entirely beside the point. The Act requires the Supreme Court only to “take account” of Strasbourg decisions, not to follow them; and it gives courts, whether British or European, no power to strike down Acts of Parliament. Under the Human Rights Act the Supreme Court is supreme and Parliament is sovereign. Continue reading “The Government’s Policies on the Human Rights Act and the EU are an incoherent muddle”