UK versus USA and EU: Oceans apart on fundamental rights

After yesterday’s blog posts on a new pocket-sized version of the European Convention on Human Rights (ECHR) and basic information about the Council of Europe and the EU Charter of Fundamental Rights, it is time to turn to the odd man out among civilised nations: the United Kingdom.



In the Declaration of Independence (1776), by the Second Continental Congress, the thirteen united States of America turned the tables on King George III:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness ─ That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, ...

Principles of the English Bill of Rights (1689) and Enlightenment philosophy also flowed into the Constitution of the United States of America (1787), including the first ten amendments known as the United States Bill of Rights, which came into effect in 1791.



In the United Kingdom, absent the notion of citizenship and a codified constitution, subjects of the Crown enjoy certain rights based on a patchwork of domestic statutory provisions and common law rules.



The set of laws and principles under which the United Kingdom is governed form the uncodified constitution. According to the fundamental doctrine of Parliamentary sovereignty, the UK Parliament can change any law including the constitutional rules by a simple Act of Parliament, so domestically the rights of a British subject hang by a thread, subject to the whims of each Parliament in Westminster.



English nationalists seem to worship a ragtag bag of domestic documents from Magna Carta onwards with fervour, as if these parchments and papers somehow conferred superior protection for Englishmen compared to the human rights enshrined in other EU countries or the United States. Have these fervent Crown subjects even read the Magna Carta?



The Magna Carta is a historically important document, but so is the Code of Hammurabi.



The Conservative election manifesto 2010 still saw superior human rights and fundamental freedoms as an encroachment [on Parliamentary sovereignty] and pledged to replace the Human Rights Act with a UK Bill of Rights (page 79).



Intellectually and politically an unqualified statement like that would have placed the United Kingdom on par with Belarus with regard to European human rights standards.



The latest general election led to a coalition government between the Conservatives and the Liberal Democrats, so the UK Coalition programme 2010 shows restraining influences on the government’s urge to gain the upper hand against judges and the people (page 11):

We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

Thanks to the Liberal Democrats, rights under the ECHR will be given continued protection, and there is even talk of potentially extending the rights of British subjects.

It is still amazing: Where in the civilised world of today can you, as the Conservatives, emerge as the biggest party in free and fair elections on a promise to curtail human rights?


Without UK membership in the European Union (indirectly benefiting from the EU Charter of Fundamental Rights despite opting out) and the Council of Europe, with the 1950 European Convention on Human Rights (ECHR) finally brought into force in 2000 by the UK Human Rights Act 1998, individuals in Britain would have few guarantees against excesses by government or parliament.

The media climate and the political atmosphere in the United Kingdom are still oceans apart from the fundamental rights traditions protecting citizens across the Atlantic Ocean and the English Channel.



I wonder why.




Ralf Grahn



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David Cameron’s Horrorland speech

After reading David Cameron’s article in The Guardian, New politics: We need a massive, radical redistribution of power (25 May 2009), I could hardly wait to hear more about Britain under a Conservative government.




Since this is a blog about the European Union and European integration, I picked two items of interest ahead of today’s speech in the blog post Ailing United Kingdom: Proportional representation and EU membership:



1) People’s courts?

Fundamental rights and the rule of law seem alien to Cameron, who believes in a massive, sweeping, radical redistribution of power from judges to the people.

Does he want direct action by lynch mobs or does he prefer people’s courts to act as instruments in robbing individuals of protection against public authorities?


2) European Union

As Conservative leader Cameron demands a massive, sweeping, radical redistribution of power from the EU to Britain.

Ahead of the European Parliament elections it is only fair to ask which powers under the existing Treaty of Nice he wants repatriated.

If Cameron wants the United Kingdom to secede from the European Union, he should say so, but he would need to indicate the shape of the future outside.

If Cameron wants Britain to stay on in the European Union, he should explain why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state

***


Horrorland speech

I have now read Davic Cameron’s Horroland speech, serving generous helpings of indignities of contemporary life in Britain. Did the speech, officially called Fixing Broken Politics (26 May 2009). offer additional information about my questions?


***

Fundamental rights?

To curb the protection given by courts to individuals, Cameron proposes the following:

“And we will introduce a British Bill of Rights to strengthen our liberties, spell out the extent and limit of rights more clearly, and ensure proper democratic accountability over the creation of any new rights.”

The reasoning looks disingenious. Cameron is clearly out to restrict the protection offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms (UK: Human Rights Act), but he describes it as a strengthening of the liberties of the British people.

Naturally, he does not even mention the more modern Charter of Fundamental Rights of the European Union, which the United Kingdom has opted out of together with then Kaczynski Poland, hardly the best proponents of human rights among the 27 EU member states.

Cameron does not go into details, although he should. Does a watered-down domestic Bill of Rights mean that Britain is going to secede from the European Human Rights Convention and leave the Council of Europe?


***

Goodbye, European Union?

Cameron’s offers the following recipe for UK relations with the European Union:

“We will therefore hold a referendum on the Lisbon Treaty, pass a law requiring a referendum to approve any further transfers of power to the EU, negotiate the return of powers, and require far more detailed scrutiny in Parliament of EU legislation, regulation and spending.”


This time around, Cameron seems to promise a referendum on the Treaty of Lisbon regardless of its entry into force.

Every future transfer of powers to the European Union would be bogged down by a national referendum.

A Conservative government would – so it seems – negotiate a return of unspecified powers from the EU to the United Kingdom. We are none the wiser as to my questions: Why he believes that the other EU member states are going to accept by unanimity every Tory demand for even less British responsibilities and still keep the UK as a member state.

The membership of the United Kingdom is already a severe problem for Europe.

I see little reason for the rest of the EU member states to accept reverse integration or permanent immobility in an organisation plagued by the unanimity rules and detailed treaties.

Let the coming UK government make its demands explicit before the European elections. Failure to bring about the tearing up of the Treaty of Nice leaves the option of secession.

A constructive UK would be a loss, but British membership under Cameron would be a greater calamity for Europe.


Ralf Grahn

Monitoring the EU Charter of Fundamental Rights

The first Convention prepared the Charter of Fungamental Rights of the European Union, and it was solemnly adopted as politically binding at the European Council in Nice, in December 2000.

Later it was incorporated into the Treaty establishing a Constitution for Europe, as Part II, and published in the Official Journal of the European Union (OJEU) 16.12.2004 C 310.

When the ratification processes of the Constitutional Treaty had petered out, the Treaty of Lisbon proposed to make the Charter legally binding, but the text was published separately, OJEU 14.12.2007 C 303/1.

Cf. Article 6 of the amended Treaty on European Union, OJEU 9.5.2008 C 115/19.

In other words, the EU Charter of Fundamental Rights enters into force if the Lisbon Treaty does, but one should bear in mind that the United Kingdom and Poland opted out of the Charter. (The UK has embarked upon a disconnected exercise to craft a national Bill of Rights.)


The differences between the versions are small, so if you have no need for a certain version, it is convenient to use the latest one.

***

Monitoring

The Commission, which drafts legislative proposals, systematically check them against fundamental rights.

The Commission has now published an appraisal of its monitoring activities: The Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Fundamental Rights (Brussels, 29.4.2009 COM(2009) 205 final).



The Commission stresses the growing importance of fundamental rights issues in the area of justice, freedom and security (page 3), and it names the so called asylum package as a case in point. The obligations are not only procedural, but substantive as well.

The Commission then goes on to discuss improvements to the monitoring process.

The Commission concludes by underlining the need to foster a fundamental rights culture and that the respect for fundamental rights must be a common goal of all the institutions involved in the legislative process.



Ralf Grahn

Human Rights: UK exceptionalism

The Joint Committee on Human Rights of the House of Lords and the House of Commons has published a report called ’A Bill of Rights for the UK? Twenty-ninth Report of Session 2007–08’ (HL Paper 165-I, HC 150-I; published 10 August 2008):

http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165i.pdf

The report outlines a future UK Bill of Rights.

***

Browsing the report, you would have to be a genius to detect that the United Kingdom is a member state of the European Union, or that its government has politically signed up to the Charter of Fundamental Rights of the European Union of 7 December 2000, or that the United Kingdom has ratified the Treaty of Lisbon, or taken the trouble to opt out of the Charter, as adapted on 12 December 2007.

I have no desire to deprive UK residents of modern human rights protection, but even by British standards the presentation seems to reach new heights of tunnel vision.


Ralf Grahn

EU democracy and US Bill of Rights

James Madison penned the Bill of Rights, approved by the First United States Congress in 1791. When proposed, the first ten amendments (additions) to the US Constitution aimed to secure the ratification of the Constitution, still a bone of contention between Federalists and anti-Federalists.

The birth and life of the US Constitution is a recommended reading subject for anyone interested in a Europe able to protect its citizens in a changing world.

A glimpse at the ‘United States Bill of Rights’ development is offered by the Wikipedia article:

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

***

My present fascination with the subject stems from another ratification process, the one concerning the EU Treaty of Lisbon.

Built on the sand of unanimous ratification, I had long ago labelled the passage of the Lisbon Treaty (and future treaties on the same premises) a ‘mission impossible’. Today we know for sure that the number of ratifications will fall short of 27. What we don’t know is, by how much.

It would be surprising if the Irish changed their minds within six months or a year, if asked the same question again.

***

Despite the unanimous agreement between member states’ governments and the crushing voting records of most ratifying national parliaments, something is rotten in the state of the union, despite the legally binding ratifications.

Popular opinion is headed in a negative direction, fluctuating between cynicism and outright hostility. Pro-European intellectuals, free to speak their mind, are disillusioned to the core.

Hard of hearing, the European Council has only procrastinated and indicated a re-run in Ireland.

This is deliberately avoiding the root causes.

Even if the substance of the Lisbon Treaty could be salvaged, by most member states, the holes below the water-line put the whole European project at risk.

The European ‘Bill of Rights’ is radical democratic reform to re-establish the necessary ties between the governing and the governed.

There is time enough to devise the essentials of democratic EU reform and to make the European elections 2009 a turning-point in setting the course for the European Union.

Where is Europe’s James Madison?


Ralf Grahn

Lisbon Treaty and democratic reform

Even if the EU Treaty of Lisbon is an improvement on the current Treaty of Nice for anyone who cares about a European Union working better, we can ask if ‘getting around’ the Irish rejection is the right remedy.

The referendum outcome may be both deplorable and unwise, but the Irish voters should be treated as adults. They live with their decision, until they are ready to make a new one, without being force-fed.

At this moment I think that it is improbable that the voters in Ireland would endorse any conceivable add-ons in the form of declarations. The attitudes might even harden, resulting in embarrassment for the government, the European Council and the European Union in general.

Failing that, an amicable solution may be found. Ireland, perhaps the Czech Republic and some others, might be persuaded to let the willing states proceed on the basis of substance of the Lisbon Treaty. But can we bet on such an outcome, and could it be done without an amending treaty? In the end, the countries wanting to move ahead could establish a new union, if they have to and if they have the will.

***

The parliamentary ratifications show a strong voting record in favour of the Lisbon Treaty. In my view, representative democracy is clearly superior to plebiscites in scrutinising and approving international treaties, including the EU ones.

At the same time, the anti-EU sentiments are gathering force because of the methods used and contemplated to enact EU treaty reform.

Strong as the sentiments are, the motives behind them are misguided. The main idea seems to be to wreck the process and to debilitate the European Union.

A feeble European Union is less able to enhance the security and prosperity of EU citizens. It is an illusion to imagine that global challenges and European level questions could effectively be handled by re-exporting them to the national governments and parliaments.

Therefore, it lies in our collective interest that the substance of the Treaty of Lisbon, with its modest reforms, is allowed to enter into force.

***

But the handling of the ratification processes is damaging for the relationship between the national leaders, the European Council and the European Union on the one hand and large swathes of EU citizens on the other hand.

This does not augur well for the future of the European project. Legitimacy is a core problem, and it is not being addressed adequately within the present parameters.

***

During the ratification process of the US Constitution, the Bill of Rights was introduced and put in place as soon as the new union commenced work.

Europe needs something of the kind.

Democratic accountability in EU affairs can not be achieved by the present dual character of the European Union, and the national level is not an effective answer.

Therefore, the substance of the Lisbon Treaty as an initial foundation, needs the additional change of the European Union into a democratic polity.

The European “Bill of Rights” would be this qualitative jump, as a solemn undertaking by the member states.

They need to understand that all EU affairs have to emanate from the EU’s citizens, to be exercised by their elected representatives and with a politically responsible government.

This is the crucial reform principle to prepare during the coming months, jointly with the efforts to bring the Lisbon Treaty reforms into force.

The democratic principle is not only a groundbreaking novelty. It goes against the intergovernmentalist credo of a number of member states.

Therefore, putting it into practice would require some member states to embrace democracy as the only viable option for the 21st century, knowing that they would have to leave a number of recalcitrant members behind.

In other words, two major shifts are needed: The full adoption of the principle of EU level representative democracy and the sacrifice of EU unity (one-speed Europe) in favour of a legitimate union.

But what is the alternative? Growing popular disillusionment, hardening resistance, blocked future reform and ultimate failure. The writing is on the wall.

The democratic European Union is worth the sacrifice of two current principles of lesser value.

In short, we need the substance of the Lisbon Treaty, but not without a ground-breaking democratic reform.


Ralf Grahn





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Bill of Rights

As a consequence of American export of popular culture, millions of people in every corner of the world daily watch American television drama based on the Constitution. Lawyers, prosecutors and policemen all use phrases and concepts derived from the Constitution of the United States of America. Naturally, the supreme importance of the Constitution has occurred in the USA itself.

In The Penguin History of the USA Hugh Brogan states:

The degree of one’s understanding of the Constitution is to a large extent the degree of one’s understanding of the United States.

Given their knowledge of the world and their experiences of colonial rule, which freedoms seemed worthy of special protection in the newly independent Union?

The first ten Amendments, additions in practice, known as the Bill of Rights, express the concerns of late 18th Century Americans. Ratified in 1791, the Bill of Rights still form the nucleus of modern, international declarations of human rights and modern constitutions of the world.

The American Bill of Rights is part of the common legacy of humanity:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.


Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Amendment IX

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.


Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


Ralf Grahn