Withdrawing from the ECHR: a European "Civil Death"?

Increasingly there are calls for the UK to leave the European Convention on Human Rights, which has recently been brought to public attention because the of the Hirst v UK (No. 2) case, in which the Court ruled that the UK breached the rights of prisoners by having the loss of the right to vote as an automatic consequence of imprisonment. It should be noted that the Court of Human Rights is not connected to the EU, which is a different organisation - a mistake that people who should know better continuously make.

[Though the Convention has influenced the rulings of the court of Justice of the European Union, this was historically mostly because the EU Court wants to avoid confrontation with national courts like the Bundesverfassingsgericht over respecting rights, rather than some assumed desire to subordinate themselves to another court. Now the ECJ has to take into account Convention law under the Treaties, but this only applies to EU law - and why it's a bad thing that the ECJ should respect the ECHR has yet to be explained to me.]

The Court noted the state of the law in the 47 Council of Europe countries:

"Law and practice in Contracting States

33. According to the Government’s survey based on information obtained from its diplomatic representation, eighteen countries allowed prisoners to vote without restriction (Albania, Azerbaijan, Croatia, the Czech Republic, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Germany, Iceland, Lithuania, Moldova, Montenegro, the Netherlands, Portugal, Slovenia, Sweden, Switzerland and Ukraine), in thirteen countries all prisoners were barred from voting or unable to vote (Armenia, Belgium, Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia, Turkey and the United Kingdom), while in twelve countries prisoners’ right to vote could be limited in some other way (Austria, Bosnia and Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Romania and Spain).

34. Other material before the Court indicates that in Romania prisoners may be debarred from voting if the principal sentence exceeds two years, while in Latvia prisoners serving a sentence in penitentiaries are not entitled to vote; nor are prisoners in Liechtenstein."

The Court ruled that an indiscriminate restriction of the right to vote was contrary to the Convention. This doesn't mean that prisoners' right to vote cannot be restricted, but it has to be proportionate to the offence and not automatically applied to all prisoners regardless of the crime committed. I have heard few arguments against this per se, except that of the medieval concept of the civil death, where a prisoner looses all his or her civil rights upon conviction. The problem with this line of argument is that it hasn't been made in a very coherent way. The medieval concept entailed the loss of all rights - even that of the right to life, so that murdering such a person was not against the law (just like killing an animal isn't murder). Nobody is advocating that, but then that means that we distinguish between different types of punishment all the time. Some crimes result in a prison sentence, some do not. Much of the anger has been directed against the idea that murderers and rapists would get the vote - but this is not what the judgment is about, and the people in prisons are not solely murderers and rapists. Should I take it that serious violent crime is the sole criteria that people think would merit disenfranchisement, or are there other grounds?

Sadly, it has not been a subject of public debate to decide which crimes are worthy of disenfranchisement. It is a sad loss to the public debate, but it was raised by David Rennie of The Economist - the only place in the mainstream media I have read such an argument about the quality of this debate.

Jon Worth has looked at the international dimension to the idea of withdrawal from the Convention. Mutual responsibilities are important, and it's odd the way some people are eager to reject the argument that withdrawal would encourage other countries with worse human rights records to ignore the Convention or withdrawal as not the UK's concern (is it not in everyone's interest that their remains a culture of human rights and democracy in Europe? Like a garden, these things need to be maintained, and it's foolish to pretend that history is simply progressive and that things won't decline). The political culture in Europe and other European countries tends to spill over and become an argument in other countries, for good and bad. The argument that other countries should withdraw and take responsibility for these matters themselves - well, I don't find that convincing at all. I doubt that France's outburst over being called on the Roma expulsions was down to being part of a system of international law, but rather due to a feeling of entitlement, as if it should be allowed to do whatever it wants.

Similarly the attitudes of exceptionalism do not make good arguments for withdrawal. The idea that there is something unique about the UK that it will always deal with these matters well is not very reasuring. Likewise, I wouldn't believe France would be great at the job simply because it can claim that the Declaration of the Rights of Man and Citizen as part of its historical legacy. The UK's recent anti-terrorism laws have been a cause for concern for the UK courts, but some of these issues (unrestrained stop-and-search) had to reach the ECHR.

A claim that is also being made is that British judges can protect the rights of citizens better than the European Court. First of all, this ignores the fact that due to the doctrine of Parliamentary sovereignty, British judges cannot overturn breaches of human rights enacted by Parliament (say, if it legalised torture or restricted the franchise). Second, though it has been pointed out that some US states don't permit prisoners to vote, it's not a clear "continental European v the Commonwealth" dividing line, as Canada and South Africa have produced similar judgments. The question then becomes would the people who argue that the British judiciary should be able to protect rights accept it if the Supreme Court made the same judgment? Or is it more of an argument that it should be for the legislature rather than the judiciary (in which case it becomes a question of should the state be able to do what it wants - for no matter how democratic the decision is, it ultimately uses state power against the individual)? I'm afraid I've never been convinced by the argument that politicians should have absolute power.

Indeed, in a system where rights in general are conferred and may be taken away without reference to the rule of law it is hard to speak of rights as such. Surely the correct term for rights that are bestowed and may be taken away by an unchecked sovereign authority is "privileges"?

He is subject, You are supreme, but I am Sovereign

The EU Bill is still trundling its way through the UK House of Commons. The Bill is aimed at creating safeguards against future transfers of power from the UK to the EU, mostly by making referendums in such cases compulsory (though, oddly, not when it comes to enlargement, which will stoke suspicions in other Member States as to political ultierior motives behind the Bill). Earlier this week, proposed amendments by Conservative MP Bill Cash and other were defeated; these amendments were aimed at creating a version of parliamentary sovereignty that could not be interpreted or challenged by the courts (or, perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty beyond the reach of the courts). Parliamentary sovereignty is the UK legal doctrine that parliament has supreme legislative authority, and its Acts cannot be challenged by the courts - it can do whatever it wants, except limit the power of its successors (i.e. the next elected parliament(s)).

The debate* was a strange one, centering around clause 18, the sovereignty clause. As the clause stands, it basically reaffirms the UK legal position that EU law applies in the UK because UK law (in the form of the European Communities Act 1972) says so. The ultimate decision is parliament's, therefore parliament remains sovereign. However the debate obviously contains several competing strands and ideas which see sovereignty in their own ways. It's incredibily hard to define them and tease them out, as they seem to be mashed up. I'll briefly look at some of the points raised (or perhaps half-raised unknowingly by some parliamentarians).


Everyday Absolutists v Ultimate Absolutists.

PS was sometimes defined as "could the UK opt out/disapply an EU law it doesn't like"? The different contributions seemed to indicate 2 lines of thought. 1. Yes, as we can ultimately withdraw from the EU. 2. Yes, we could pass an explicit law disapplying whatever we don't like (in legal terms inserting a provision that the ECA 1972 didn't apply, and it was enacting something different to the EU law). Both, technically, are correct, but the second option would place the UK in breach of EU law and it would be liable to fines - with the matter only being finally settled by withdrawal or the UK accepting the EU law.

Sadly it was only MacShane MP who highlighted that compliance is supposed to be a reciporcal act, using the fact the French had to let in British beef under EU law during the mad cow disease crisis when Commonwealth countries were rejecting it. EU law is not meant to be a pick-'n'-mix affair.

In any case, neither position would have been affected by the amendements either way.


Political reality Constitutionalists v Common Law "radicals".

This was the big debate, and the reason for the introduction of the proposed amendments. Bill Cash is seemingly worried about the power of the judges regarding parliamentary sovereignty. The problem is that Parliamentary sovereignty isn't actually written down anywhere. Of course, it's often said that the UK has an unwritten constitution, but large parts of it are written down; just not in the same place.

There seem to be 2 schools of opinion on the matter. First is the Fundamental Constitutional Principle one, which considers the principle to be outside of the common law (judge-made law) because it was the result of historial events (essentially parliament fighting the monarchy and winning). The second school (increasingly dominant), considers the doctrine to be a common law principle. This matters because the Common Law is an evolving body of judge-made law, where judges interpret and adapt the law. So if PS is part of the Common Law, that means that judges can interpret and adapt it - which is what Cash is worried about, and why he wants to exclude judging from deciding this constitutional matter.

PS is under some preasure from the courts, though there has been little direct conflict yet. In Thoburn v Sunderland City Council, (decided in a relatively low court) it was suggested that some Acts of Parliament should be held to be higher than others (such as the Human Rights Act 1998 and the ECA 1972), so they cannot be affected by implied repeal, but would have to be expressedly repealed by Parliament. This wasn't part of the effective ruling, but obiter, but if accepted it would be a change to PS, as a more recent Act wouldn't impliedly repeal a "constitutional" Act if it conflicited. More recently, in A v Jackson, it was suggested (again in obiter) that PS was a general rule and no longer absolute. The ruling was in the House of Lords (now the Supreme Court), and it was considered that if Parliament breached the rule of law, the courts may not adhere to PS.

Cash wants to prevent the courts from changing the concept of PS, so he wants to set it out in statute. As the Bill is on the EU, and not a general sovereignty Bill, this can't be done in totality, so he attempted to start restricting the courts' role in PS in the area of EU law first.

In some ways I'm reminded of the debates surrounding the constitutional role of the French Parlements (which were big general courts) in the French constitution before the French Revolution. Some Parlementaires wanted to push the idea that they limited the power of the absolute monarchy. As Louis XV retorted:

"...authority can only be exercised in my name... and never be turned against me. For it is to me exclusively that the legislative power belongs without qualification or partition." [Taken from Simon Schama's Citizens, p.87-88.

Obviously it's nowhere near a neat parallel - the UK is a representative democracy, after all - but there does seem to be the idea, gaining ground in recent years, that the courts could limit the Parliament (which claims to be absolute) if it breached the rule of law. The rule of law is a vague concept, but it may have recently gained more legitimacy simply by being recognised as a pre-existing Common Law principle by Parliament in the Constitutional Reform Act 2005. (Indeed, protecting the rule of law is key to judicial concerns, so I suspect that their tentative moves towards adapting the PS doctrine is more as a result of recent anti-terrorist legislation than any influence the EU may have had).

I've spent far too long today reading about this, but naturally the question is complicated and you would need to deeply research this before you could really take a stab at an answer. However, I think I'll give my - perhaps crudely formed - thoughts on this. I am pretty firmly in the Common Law Radicals camp. Though PS isn't rooted in case law or a Parliamentary Act, I have trouble accepting that it should simply be regarded as a Fundamental Constitutional Principle because it was a political reality once political power shifted from the monarch to the Parliament (or, more accurately, from the Crown to the Crown-in-Parliament). It doesn't rest easily with me that the fundamental constitutional principle should be rooted in the argument "might makes right", or even "political reality makes right", with no reference to law - can there be a fundamental constitutional principle that's beyond the law?

More satisfying for me is the idea that PS is part of the Common Law. Courts have, after all, made pronuncements on PS, and if the suggestions in Thoburn or A v Jackson were accepted, then the courts would be changing and shaping the principle. (Ironically many MPs for the amendments cited Lord Justice Laws in Thoburn as supporting their side of the debate because he made it clear that the appliability of EU in the UK was a matter for EU law, yet his obiter thoughts would imply that PS is a Common Law principle!).

Having PS as a Common Law principle raises the problem that judges would have influence over such an important area of the law, but then is having a whipped Parliament in sole, unchecked, charge a better option? In my opinion it is not. A qualified principle of supremacy would mean that the judiciary would be a stronger check on Parliamentary power - but it wouldn't mean that the judiciary takes over all legislative power. Ideally the UK would adopt a constitution vesting sovereignty in the people rather than the Parliament - which brings us to the final strand.


Parliamentary Sovereignists v Popular Sovereignists.

The Bill is intended to make referendums on transfers of power to the EU mandatory. This goes against PS in that it makes the decision the people's, and not Parliament's, and it is intended to be a permanent feature of the constitution - in other words binding its successors (though Parliament could repeal the legislation if it wanted). This shows the political confusion over PS: some politicians obviously equate Parliamentary Sovereignty with popular sovereignty (where the people are sovereign), when they are politically and legally distinct ideas. Indeed, this part of the Bill could cause adaptation of the doctrine of Parliamentary Sovereignty by the courts! To quote Professor Paul Craig, who was one of the legal academics who gave submissions to the European Scrutiny Committee (of which Cash is the chair), at page 23 (PDF):

"How far is a decision whether or not to hold a referendum a legal question, amenable to judicial review,
and how far a political question? The relevant considerations in answering this question are as follows.

(a) The EU Bill is framed in mandatory language. The holding of a referendum is not a matter within the
discretion of the government. It must be held where mandated, [...]

(b) The principal difficulty is that if Parliament enacts a statute approving the Treaty amendment or Article 48(6) Decision without holding a referendum then any judicial review action would be challenging this primary statute. A legal action would run into traditional sovereignty reasoning: the courts do not review the validity of primary statutes in the UK. There are nonetheless two possible ways to surmount this objection.

(i) An aggrieved citizen or MP might try to frame an HRA case, arguing that denial of the referendum violated one of the Convention rights brought into UK law by the HRA. The court would then review the Act of Parliament approving the Treaty amendment without the referendum pursuant to HRA sections 3–4.

(ii) An alternative would be to argue that while the courts will not review the validity of primary statute on substantive grounds, they can do so in relation to arguments of manner and form. This is the “New View” of sovereignty advocated by writers such as Jennings, Heuston and Marshall, who contend that if, for example, an Act of Parliament specified that it could only be amended or repealed by a two thirds majority, then a later statute that made such change by a simple majority should not be recognized by the courts because it did not comply with the conditions for its enactment. It might be argued that the referendum requirement in the EU Bill is, by analogy, a manner and form condition, such that if a later statute were enacted without a positive vote in a referendum then the later Act of Parliament should not recognized by the courts. This reasoning is reinforced because of the wording of Clauses 2(2) and 3(2). The UK courts have not directly pronounced on the reasoning underlying the New View in relation to a case concerned solely with the UK."

This Bill probably highlights tha problems and pressures of having (and trying to maintain) a point of absolute power within a system of devolved government and within the context of supranational and international law. It will be interesting to see if the British constitution can successfully evolve to deal with the legal and political challenges of the modern world, and a modern Europe, or if a more radicial break with the past is needed.

*[Hat tip to Nosemonkey for the debate link].

Sovereignty: Concepts

I will try to look at sovereignty in this post, and it will be part of a series - the contents page is here.

What is sovereignty?

Or what do we mean by sovereignty? If we take sovereignty to mean the ability to decide matters within a territory without the input of other extra-territorial actors, then we immediately face questions about who exercises sovereignty, and what are the limits of sovereignty in practise? And where does sovereignty come from?

Who exercises sovereignty?

This is usually a question that is settled within the territory by a constitution - the most popularly held theory in the west is that sovereignty, or the decision-making power, needs to be spread or divided between several state institutions. The idea behind this is that if sovereignty is concentrated in a single person or institution, there would be no effective check on the possibility of tyranny. Therefore the executive, legislative and judicial functions of the state are usually divided between different institutions, though in practise it's never achieved exactly as is may be conceived in pure theory.

(Questions of effectiveness also impact on how far sovereign power should be divided: if the legislature cannot influence the executive, and the executive cannot introduce/initiate legislation, then how far is effective (and democratically responsive) governance affected?)

In some cases sovereignty may not be as divided or constrained as this: the UK's unwritten constitution is a good example of this, with sovereignty vested solely in parliament. Such constitutions are more political (they give the most power to (hopefully elected) politicians) than the codified constitutions that are more familiar nowadays - codified constitutions usually allow the judicial branch to trump the legislative and executive branches since the courts can decide whether or not they have acted/are acting constitutionally.

Who is sovereign?

Or where does sovereignty come from? The two commonly referred to models are those of popular sovereignty and parliamentary sovereignty. Parliamentary sovereignty is where the parliament is sovereign, perhaps in the style of the UK constitution, though in theory this could derive from the idea that the people are sovereign and the parliament, as the representative of the people, should thus be sovereign constitutionally. In the UK, parliamentary sovereignty derives from an older form of sovereignty: the monarch was previously sovereign (somewhat in the style of absolute monarchs) and over time and through conflict this sovereignty was "stolen" by the parliament. Under UK constitutional theory, and in some other similar constitutional systems, the people are not sovereign.

Popular sovereignty is where the people are considered sovereign: e.g. the Irish constitutional system. In practise, of course, this doesn't usually translate into much more than a more direct say on constitutional issues, but it is perhaps a more modern way of looking at the issue. However, it does raise an interesting theoretical issue: whereas in structures where sovereignty is vested and sourced from the top, the state is defined by itself - its own power - and is self legitimising ("It controls, therefore it is"), states based on popular sovereignty could be said to conditional - power is (in theory) delegated to the organs of the state because they can effectively enforce, through good governance, the will of the people.

When the question turns from the fixed idea of sovereignty as solely a fixed territorial notion to the effective translation of the individual or the community into practical governance (for how else in our modern world can we justify the imposition of political power by the state on the individual?), then the question becomes: does the current state, in its current form, have the ability to deal effectively with the issues affecting the area it governs (or, more importantly, the individuals its governs)?

By fixing sovereignty at the individual level, the resulting thinking could take some very overtly federalist tones: which powers, and at what level, should be pooled by each of us to ensure the best environment for the expression of both individual and collective wills in an effective manner, and in a manner which minimises the conflict between them?

Constitutional questions thus remain forever open, and assertions of traditional fixed forms of states loose their value as arguments in themselves. At the same time, this thinking contains by its very nature the individualism of strands of western political thought: by viewing sovereignty as an individual quality, protection of the individual should remain central to the states resulting from it.

This does have the effect of changing and blurring the original definition: sovereignty becomes less an absolute concept, and one of relativity and power-balancing and effectiveness. It also becomes blurred on the territorial front: the state doesn't become more mobile - it still needs to be fixed to a defined territory - but its sovereignty/power derives less from the land it controls, but from the individuals who happen to live there (it's not because the state controls the area that it can control the individuals to an extent; it's because the individuals in a certain area require a way of effectively administering to the shared needs across a certain area).

Sovereignty becomes less of a value in and of itself, but a question posed of how we balance the values we hold and how we handle the power distribution which affects those values in practise.

In my next post in this series, I'll look at the nation-state, sovereignty, and the EU.

Democracy, Legitmacy and Sovereignty

Inspired by some of the issues raised by Nosemonkey's recent series of posts, I thought tht I would try to examine some of the issues behind the three title words and the impact of the European Union. This will be a "contents page" of sorts, with the links to the posts that I'll hopefully come up with.

Vague provisional outline:

- Sovereignty:
(1) Concepts
(2) Nations, States and Sovereignty
(3) the EU and Sovereignty
- Legitimacy
- Democracy and Union

UK: What's in a Constitution?

In the UK there is a certain pride in their legal traditions, but there seems to be a confusion about what it all means - the concepts of referenda and parliamentary sovereignty are increasingly uttered in the same breath, seemingly without the speakers' awareness of how much these concepts are incompatible. The UK is famous for its unwritten constitution. Of course it has a constitution, but it's not codified - and a lot of people don't seem to know what it is, exactly. And the bigger question is: is the old constitution, favoured for its flexibility, up to the task of serving today's Britain?

There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).

The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.

Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.

So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.

The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).


Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.

There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****

While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).

Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.

In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.

If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.

This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.

And if you think all this is messed up, just take a look at land law in Ireland and the UK!





*Depending on the religion. In some cases perhaps even more powerful than god.

**Where the King was fired and Parliament bought a new one.

*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.

**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.

*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].

[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]