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?”

Conservatives should support the Article 50 litigants

The legal battle over whether Article 50 should be triggered by the Prime Minister wielding the Royal Prerogative (as the Government wants), or by an Act of Parliament (as the Remainer litigants contend is necessary) is proving to be a much tougher fight than many had predicted. The Government won a victory in Northern Ireland last week when the High Court ruled in its favour. Mr Justice Maguire ruled that Article 50 Notification would not breach the Good Friday Agreement. He tactfully declined to express any opinion on the English litigation which raises different issues. It is by no means certain that it will go the same way,

The Lord Chief Justice and his two colleagues will deliver judgment shortly, although it is virtually certain that the case will then go to the Supreme Court which has pencilled in a date in December. The outcome is unpredictable, and there is even talk that the case could be referred to the European Court of Justice to answer the potentially critical question of whether notification given under Article 50 is revocable. Although the demeanour of the judges has given little away, there is a feeling amongst some lawyers that a Government defeat is a real possibility. Continue reading “Conservatives should support the Article 50 litigants”