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?”

What Sir Ivan Rogers did next: he was called to the criminal bar

 

January 5th 2020

Sir Ivan Rogers left the Foreign Office three years ago. Fortunately, his skills have come in very useful in his new career at the criminal bar. …

*** *** ***

Ah good morning Mr Bruiser, very good to meet you.

Fuck that, name’s Duncan. Are you my brief?

Yes indeed. Let’s see if we can find a free interview room for a chat.

Why do we need to chat? Haven’t you read the papers?

I have, Mr Duncan-Bruiser, sorry, I mean Duncan, but there’s one or two things which it would be very helpful to discuss with you before the trial starts. I see it’s already 10 past 10 and we have to be ready to start at 10.30. The interview rooms are all full up I’m afraid. Never mind, if you squeeze in there and keep your voice down, then I can sit on this little table here. Excellent. Cosy even. Continue reading “What Sir Ivan Rogers did next: he was called to the criminal bar”

Prison reform cannot succeed unless we reduce the number of prisoners

Despite last week’s riots in Birmingham Prison, I know that prison works.

I suspect that’s not a popular view amongst readers of this blog. Over the years I’ve tended to write rather sceptically about the value of long sentences, and – all things being equal – I’ve tried to advocate a generally non-punitive approach to sentencing, and if you’re reading this now I’d guess that you’re more likely to be comfortable with a liberal rather than a hard-as-nails penal policy. I don’t like to generalise, but my idea of most of my readers is that you probably think that prison is at best a necessary evil.

But in some cases prison really does work.

I am not mainly thinking about the sort of dangerous people who have to be locked up because if they weren’t they would kill you.

I am thinking about people like my client from a year or two ago – I’ll call him Danny, although that’s not his real name. Continue reading “Prison reform cannot succeed unless we reduce the number of prisoners”

No, Louise Mensch, Thomas Mair’s judge did not act immorally: No, Secret Barrister, she’s not motivated by malice

I never thought it would happen that Louise Mensch would have occasion to defend my honour, but so it has turned out.

I hadn’t paid her much attention until the last few days. On the whole I rather liked the little I knew, particularly the fact that she had stood up for Professor Tim Hunt after he was infamously accused of sexism in a talk he gave in Korea. Her main opponent in that spat was Connie St Louis, the controversial Director of the MA in Science Journalism at City University, and by relying on facts and evidence Ms Mensch won the argument and rescued Tim Hunt’s reputation from being unfairly traduced by Ms St Louis and her supporters.

Last week I wrote a short blog-post about the trial of Thomas Mair, the man who murdered Jo Cox. It was nothing very special. I noted a few aspects of the trial which struck me as odd: the fact that a statement from the MP Stephen Kinnock had been read to the jury pre-conviction, even though its contents appeared to have nothing to do with establishing Mair’s guilt; and the fact that psychiatric evidence had not featured as part of Mair’s defence. The piece was written before sentence was passed – in truth most of it was written before the jury returned its verdict, so much of a foregone conclusion did Mr Mair’s guilt seem to be. I also suggested that it was likely that the judge would ask for some psychiatric evidence before passing sentence. In fact, as we now know, he passed sentence – life imprisonment with a whole life term – almost immediately, and without making any reference to any mental health issues. Continue reading “No, Louise Mensch, Thomas Mair’s judge did not act immorally: No, Secret Barrister, she’s not motivated by malice”

Some footnotes to the conviction of Thomas Mair

Seldom can there have been less doubt about the outcome of a case than there was over today’s conviction of Thomas Mair for the murder of the MP Jo Cox.

The prosecution was able to rely upon numerous eye-witnesses, a compelling battery of scientific evidence, CCTV, weapons, and Mr Mair’s own words at the first hearing in the magistrates court when he shouted “death to traitors, freedom for Britain!” To cap it all, the house where he lived contained a bookshelf full of Nazi-related books, topped off by a metal Third Reich eagle.

There may be people wishing to speculate on the political ramifications of the case. I offer just 5 law-related observations. Continue reading “Some footnotes to the conviction of Thomas Mair”

Lady Hale is a great judge but she made a mistake in Malaysia

The Deputy President of the Supreme Court, Baroness Hale of Richmond, has come under fire from a number of Brexiteers, including Iain Duncan Smith, Jacob Rees-Mogg and Dominic Raab, over a speech that she gave to Malaysian law students last week. They have suggested that the speech indicated bias against the Government’s case.

Lady Hale told the Solicitors Journal earlier this week that she will “absolutely not” step down (or “recuse” herself) from sitting on the Article 50 appeal next month.

Most of the now controversial speech amounted to a canter through the short history of the UK Supreme Court. It was doubtless of considerable interest to the students, particularly as it was delivered in Lady Hale’s clear and attractive style. She devoted just one relatively short section of the speech to a discussion of the Article 50 case. She did so partly because, as she put it, it would have been “discourteous” to her hosts not to explain what the case was all about. She summarised both sides’ arguments pithily. Had she stopped at that, she probably would have escaped any adverse comment. Continue reading “Lady Hale is a great judge but she made a mistake in Malaysia”

Henriques Report: “Deputy Heads Must Roll.”

On Tuesday the retired High Court judge Sir Richard Henriques published his report into “the investigation of non recent sexual offence investigations alleged against persons of public prominence.” This was mainly – though not exclusively – related to his investigation of the Met’s handling of allegations made by a man going under the pseudonym of “Nick” and given the designation “Operation Midland.”

The terms of reference were set by the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, and about 90% of the report has not been disclosed. It is hardly surprising – though very much to be expected in an organisation that prides itself on its public relations as much as on its ability to catch criminals – that it should have chosen to “bury” the report on the day of the US elections.

As well as the bowdlerised report and the heavily redacted recommendations, it’s also worth reading the oddly chummy-sounding (although the two men had never previously met) covering letter which Sir Richard wrote to Sir Bernard. Its conclusion puts the best possible slant on Sir Bernard’s responsibility:

“I trust that commentators will not lay the blame for the grave mistakes in Operation Midland and Operation Vincente at your door. You have been let down by Officers of high rank ….”

The Times’s Sean O’Neill tweeted this morning: “Deputy heads must roll,” and I’m afraid this commentator, if that’s what I am, does not agree with the learned judge.

deputy-headsNevertheless, there is much good sense in the report and the recommendations.
 Continue reading “Henriques Report: “Deputy Heads Must Roll.””

Attacks on the Article 50 judges are a disgrace

In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.

On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:

“The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”

And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice. Continue reading “Attacks on the Article 50 judges are a disgrace”

Some rushed and barely coherent thoughts on today’s Article 50 judgment

Cases in the Administrative Court are often a bit like the Radio 4 programme You and Yours: of limited general interest. Whilst often very important for the development of the law, and for those immediately concerned, they lack the sort of immediate news value of – for the sake of argument – a rape trial involving an international footballer. Typically they will be about planning, or immigration or benefits.

This was different. It was about a question that has occasionally convulsed the nation since at least the seventeenth century: who rules Britain, Parliament or the Queen? In fact nobody contends that the Queen does so in person, but Her Government argued that the Prime Minister can do so by the use of Her prerogative. It was in fact a modern version of the Civil War, albeit conducted – in court at least – with courtesy and law reports rather than muskets and cannon balls.

No wonder the www.judiciary.gov.uk website was creaking under the strain this morning as it dealt with an unprecedented demand to download the Brexit judgment. Continue reading “Some rushed and barely coherent thoughts on today’s Article 50 judgment”

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”