Thursday, 17 February 2011

A British Bill of Rights.

The news that convicted sex-offenders are to be given the right to appeal their life-time requirement to sign on the sex-offenders' register has prompted tabloid Paedogeddon and a reprive of the pre-election Tory policy of a British Bill of Rights. This usually comes up in Conservative circles when some Euro-Judge decides some vexatious piece of law which apparently flies in the face of mob rule natural justice. The Daily Mail cliche that "the Human rights of criminals have become more important than those of their victims" is, as ever, complete bollocks. In this instance there is no European element, as the judgement was handed down by the UK's supreme court applying British Law, the Human Rights Act 1998 - something Conservatives get worked up about too, because this too is seen as a dastardly Euro-plot to undermine common law.


I have no problem with the ruling. It does seem manifestly unfair that a man with no sexual interst in children will be on a list which in public immagination lumps him in with predatory paedophiles, for the rest of his life with no right of appeal, and may therefore get lynched one day when such information is leaked to the baying press. You don't need to do much to get put on the sex offenders' register, and the fact that it's harder to get off than the cold-call list from alternative telecoms providers does fly in the face of the principle that some offenders can be rehabilitated.

On the recent ECHR ruling I have little problem with prisoners being allowed the vote. On the other hand, the restriction of the franchise is not an unreasonable punishment. It takes a court to decide who's right, and only a vindictive bastard or rights obsessive gets worked up one way or the other. The point is that I would prefer a court rooted in British law, applying law drafed in accordance with the principles of common, rather than continental, law and subject to the Crown in Parliament, to decide rather than some unaccountable foreign body accountable only to itself.

The point to make is that a British Bill of Rights would put human rights law firmly within the British legal system, rather than being an impostition flowing from our membership of the EU. This is why I support a British Bill of Rights to replace the Human Rights Act 1998. However The British Bill of Rights will still enable judges to consider the rights of Sex offenders to appeal against a lifetime of second-class citizen status. British judges will still find in favour of the rights of Prisoners to vote. The idea that the rulings the Supreme Court interpreting the Bill of Rights come up with will be any different to the current system interpreting the Human Rights Act is risible.

Indeed a Bill of Rights which didn't allow rulings to displease The Sun would not be worth the paper it's written on.

These rulings are not "legislating from the bench". It is application of principle, which get lost in the hurly-burly of politics. Politicians who think that the 'primacy of parliament' means legislating vindictively in a manner likely to appease the Sun newspaper's 'hang em & flog 'em' approach to criminal justice will be dissapointed. The only difference will be the a reaffermation of the supremacy of British law within the UK, so criminals will still get "rights", but the Sun will no longer be able to blame "Europe" for this, so I suspect the policy's most voiciferous supporters today should be careful for what they wish.



6 comments:

H said...

Spot on. Human rights are always going to be awkward - that's the point of them.

JimmyGiro said...

The past is a different country. The common law evolved to accommodate the changes of our culture, from generation to generation.

The problem with any bill of rights today, is that its inertia must clash with the cultural ethics of tomorrow; unless you also impose stagnation of cultural and ethical development for all time henceforth.

As a corollary, imagine if the Georgians or the Edwardians had left us a bill of rights, fashioned by their beliefs. Two distinct cultures of yesteryear, trammelling our legal rights of today; which would have been the better Britain?

And if you say that the bill of rights can be amended from time to time, so as to accommodate any major paradigm shifts in culture; then why have such a labile standard at all? It would only contribute an extra level of inertia, that the more natural common law would have dealt with more nimbly and closer to the time of change.

Paul H said...

Sorry JimmyGiro, I have to disagree with you. The U.S. Bill of Rights were ratified in 1791 and I would argue that all are quite relevent to our age.

A brave stance AVBD, and absolutely right. It is exactly the tough cases that should be immune to the politicians 'there should be a law against that' kneejerk reaction to events of the day.

Otherwaise we end up with rule by the commentariat.

oh wait......

john b said...

Jackart:

1) is it fair to say your proposed changes would consist of introducing a Document Of British Rights that's identical to the text of the ECHR, and then replacing all mentions of Convention Rights in UK law with mentions of British Rights - the sole reason being to stop non-common-law-background judges interpreting the text of the ECHR in a way that's inconsistent with UK legal tradition? If not, what've I missed?

2) How likely do you think it is that any actual Bill of British Rights that gets raised in parliament will consist of that, rather than consisting of watering down our protections from state authority to win Tabloid Points?

Jackart said...

John B: Most of Europe was living in totalitarian dictatorships within living memory. Spain, Portugal and Eastern Europe within MY lifetime.

Britain has 1000 years of steadily evolving freedoms.

Who to trust. Is your faith in Parliament, if given the power to change anything, so weak that you need to take the risk of shackling it to unaccountable, undemocratic institutions? Why do you trust these institutions rather than those which have served us well for a millenium?

The weakness of parliament is in part because it can influence little, and this is in part because so much law comes from the EU. So parliamentarians have to pander to the mob, rather than being principled, to get re-elected.

Just as with people, give them power, and they act responsibly. Make them supplicant, and they act irresponsibly. Giving parliament laws has the same effect as giving labour voters welfare cheques.

john b said...

Jackart -

That wasn't really my question - just wanted to know whether the practical implications of your proposed BBoR were as I'd described, or something else that I'd missed?

On your new point, I think the thing which has served us well for 1000 years has been parliament shackled to undemocratic, unaccountable (because both of those are inherently what courts are for - you can't have the King or the PM sacking a judge for delivering either the result the people don't want or the 'wrong' result) institutions.

I'm not all that concerned about whether the institution in question consists primarily of British or foreign judges - obviously within "from a democratic tradition" reasons, it would be different if the institution featured 100 Chinese judges and nobody else...!

And when I say 'not all that concerned', I mean it both ways - I don't think your BBoR would make things appreciably worse for the British people.

The only real reason I'd oppose a BBoR is that our withdrawal from the ECHR would send the wrong message to all sorts of much dodgier regimes who're currently protected by it.

Which is precisely why we wrote the ECHR in the first place, and signed up for it the moment it was created, over 20 years before we joined the EEC - we were sending a message to newly-free western Europe saying "as democratic Britain, our government has nothing to hide and nothing to fear from these rules, and nor do you".

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