On Sovereignty and the ECHR

Most things like this are dealt with behind the scenes but with this one, it might be useful for readers if I take you through the process.

It began with a letter I received:

Dear Mr. Higham,

I was wondering if I might ask you to elaborate on something you wrote on your blog titled “Human Rights versus human rights” on February 8, 2011. You state that the “Sovereignty Bill” “is actually a bill, under this parliament, to permanently weld us to Europe, both the C of E and the EU…”

What led you to come to this conclusion?

With best regards,
Christiana Maria Mauro


Naturally I looked her up and there is a Christiana Maria Mauro working in the legal department of the Prosecutor-General’s office in Budapest.  I wrote back, asking on which level she wanted the reply, if that’s who she was.  I’ve had no reply at the point of this post going up.  However, I asked her for two days to reply to the original question.

So I began re-reading and looked for any reference to sovereignty.  Found it where I commented on one of David’s posts:

Tory MPs are to be given the green light to assert the supremacy of Parliament in a defining battle with the European courts…….In an extraordinary move, the Prime Minister has decided to give his MPs a free vote on the issue – effectively encouraging them to refuse to bow to the European Court of Human Rights. A defeat would allow the Government to go back to the court in Strasbourg and insist it has tried, but failed to change the law – and that the democratic will of Parliament should prevail.”

The reason such legislation is unnecessary is that all the tools necessary to oppose the Strasbourg Court are already available, if the Prime Minister wishes to invoke them.

If it is a case of covering up an injustice, e.g. alleged mistreatment of troops, our court will act:

British Court Rejects European Convention on Human Rights Applicable to British Troops

But generally not.  David wrote about Bone’s amendment giving parliament the right to have an in/out referendum triggered the moment any powers are ceded to Brussels:

As I have posted previously; it is disgraceful that Members of Parliament seem content to cede power in whatever form to the EU, yet attempt to maintain the argument that Parliament is sovereign.

It is disgraceful that Members of Parliament feel able to vote against an amendment in a debate without having heard the arguments – presumably as a result of pressure from their Whips.

It is disgraceful for MPs to continue the argument for repatriation of powers, when they know full well that such a course is totally out of the question. Were that possible, it is disgraceful that those MPs would then still be content to accept governance from abroad.

It is disgraceful that Members of Parliament admit that they are elected to represent the views of the people but then proceed to disregard those views – and then, in support of that, state that they have not received any letters or surgery visits about the subject of EU membership.

The lack of protest on this matter, or any other matter come to that, is probably due to the fact that their constituents are only too aware that they would be wasting their time as their Member of Parliament will not listen. In my case, what is the point in my confronting Cameron when his mind is set on a course of action regardless of what anyone else may think? 

David then pointed out something which I’m not sure too many know about or remember:

I would refer readers to John Redwood’s post on the subject of regulation and the use of Statutory Instruments:

“I had a bad day yesterday. In the morning I was required for one of many Statutory Instrument Committees. Most detailed UK law now takes the form of a Statutory Instrument. The Act of Parliament which we spend a lot of time over is usually lacking detail. The detail, the things that really bite, comes in  the SIs which follow. These only get a maximum of 90 minutes debate. There can be a single vote on a take it or leave it basis. There is no opportunity to amend or improve.”

At the end of that post of David’s, a commenter gave a link to one of his posts and it was interesting.  The topic was pyrotechnics but the interesting part was how Statutory Instruments operate in this country:

Following the consultation exercise this was then discussed by the Joint Committee on Statutory Instruments, JCSI, as can be seen in the annex (search for 1554) to the report of the meeting dated 21 July 2010 here.

The annex lists the regulations under the title ‘Instruments subject to annulment’ which sounds a bit odd since the legislation doesn’t exist.

However, the way that Statutory Instruments are handled are explained in a word document snappily titled “Statutory Instrument Practice. A manual for those concerned with the preparation of statutory instruments and the parliamentary procedures relating to them” (follow link from here).

On page 65 it explains how the negative procedure works. As far as I can tell it is this negative procedure that the JCSI are applying to the proposed pyrotechnic regulations. As you will have understood if you have ploughed through the ‘use of negative procedure’ explanation, the instrument is laid before the house and if either house resolves within 40 days that the ‘address be presented to Her Majesty praying that the instrument be annulled, no further proceedings may be taken under the instrument after the date of the resolution, and Her Majesty may by Order in Council revoke it’.

In other words, if nobody does anything in forty days then it becomes law. 

Thus there never was any debate about these regulations and they are now law.

Agreed the ECHR, the Council of Europe and the EU cannot be equated in terms of their daily workings but as already stated, they are very much of the one mind.

Wiki puts the connection clearly:

Both organisations function as concentric circles around the common foundations for European integration, with the Council of Europe being the geographically wider circle.

And a Leeds legal article reinforces that:

The European Convention on Human Rights and Fundamental Freedoms is a treaty signed in 1950 by the then members of the Council of Europe. In this way, it predates the European Communities and Union and arises from a quite different organisation. The two are linked, however, in that adherence to the Convention is now effectively a condition of membership of the EU. Additionally, the European Court of Justice refers to the Convention which influences its decisions, even though the EU is not a member of the Convention.

All of these touch on sovereignty and the right to self-determination to set the laws of the land in the country’s parliament. We’ve seen MPs voting against actually having that right, preferring to cede it to the EU and ECHR but the people are not consulted on such a fundamental matter.

Further –

A pro-integration organization [this was written in 2011] shot itself in the foot when it stated:

In the case of the EU, where the treaties are intended to be permanent, the situation is less simple. The UK Parliament could certainly legislate to overthrow an EU measure, but the European Court would rule this action illegal. If the Government of the day, supported by Parliament, refused to comply, there would be a major crisis and, failing a compromise, Britain would find itself on a path which would lead to withdrawal. No one could prevent the UK Parliament from deciding to leave the EU, despite its ratification of the Treaty of Accession and the 1975 referendum (though there would be significant costs).

So OK, the Bone Amendment was not a Sovereignty Bill in that name – it was a proposed amendment which nonetheless was all about sovereignty, i.e. the right of parliament to refuse to cede powers to Brussels.

This is relevant today because on November 1st [not long to go], 43 different rights of veto are passed to be passed to the European Union, effectively ending our sovereignty.  David, Ian [PJ] and I had a little disagreement on the ECHR the other day, Ian saying it was a totally different body to the EU and I quoting the opinion that the two [inc Council of Europe] are concentric, even having the same original star design in the logo/flag.  

I am going to do Ms Mauro’s work for her, playing devil’s advocate here and ask, ‘Why, if it was not a bill entitled Sovereignty Bill, did you, Mr. Higham, refer to it as that?’ Remembering that Ms Mauro is in a legal office if I’m right about that – I await her reply.

The short answer is that it is like referring to the Community Charge as the Poll Tax – that was the name most people used for it.  That’s what it was in effect, the fine wording of the name was irrelevant in terms of the argument.

If we’re now done with that, let’s look at why Ms Mauro would be interested in an obscure post from the past, on issues of the day, on an obscure blog and in particular, one reference to a Sovereignty Bill.  I would also go back to old history and ask why Peter Hain would get up in a Labour Conference in Wales and refer to something written by one of the Albion Alliance about Muslim expansion in the UK.

As a friend indicated – there appears to be some trawling going on here.

But of course, I might be entirely wrong on this.

1 comment for “On Sovereignty and the ECHR

  1. October 9, 2014 at 1:57 pm

    There sure would be a constitutional crisis if Parliament decided that it was bound by decisions of previous Parliaments. However, there’s nothing to stop Parliament voting itself out of existence, as the Scottish one did in 1707. These days such an act would trigger a revolution.

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