Monday 16 August 2010

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

P.S. The Grahnlaw blog invites comments relevant to the topics discussed, but the number and the variety of spam comments seems to be increasing steadily. This is the sad reason for comment moderation, so it may take a while before your pertinent comment appears.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.


  1. Thanks for your attempt to grapple with an extremely complex concept, perhaps I could try to explain a few of your underlying misconceptions while answering some of the questions you pose.

    An Englishman's sense of right and wrong is inbuilt down the centuries and comes from whatever lies at the centre of his essence, I will call it his gut - hence perhaps gut-feeling.

    An international organisation such as the EU or the UN can decree that certain matters are 'human rights' but such carry no force for we English, after all by what right does any other human, no matter in what size of group, have the right to determine the rights of other humans.

    The UN decrees a new born babe in the Amazon rain forest has the right to life, but with her father absent and a constrictor snake possibly throttling both the mother and her baby such a 'right' is nonsensical.

    Those who blithely pass laws granting 'rights' which they lack the force to enforce are therefore charlatans. The 'rights' they scatter are also meaningless given that others, also without any mandate, can subsequently change or remove them at a stroke.

    So we therefore can determine that unenforceable 'rights' are by definition worthless. Similarly rights conferred without the consent of those by whom they are received are valueless.

    Sovereignty in England, historically belongs to the people and it is administered by the constitutional monarch who lends it to the people's elected representatives in Parliament for a fixed term of a maximum of five years.

    Thus any Parliament can legally override any prior act of any previous government, particularly IMO the European Communities Act of 1972 which has resulted in the sovereignty of the people being transferred to a putative tyranny within the EU.

    The Glorious Revolution demonstrated, that where the Monarch has been seen to usurp either the powers of the people or indeed the people's Parliament as guilty of a treasonous offence, such usurpers can be replaced.

    The Common Law prohibits everything which Parliament has not legislated as unlawful, thus avoiding the plague of lawyers at work across the Continent of Europe and the United States,

    Clues can be found regarding the unsatisfactory nature of other arrangements, such as in the Third Reich, the Fifth French Republic etc.

    Read this article from yesterday's Sunday press in the UK, perhaps these things will become clearer for you:

  2. Martin Cole,

    Thank you for your attempt to make the traditions and feelings of many British subjects comprehensible to outsiders who try to explore the structural guarantees for fundamental rights in the UK.

    In many countries their written Constitution guarantees rights for citizens, changing the Constitution requires super-majorities or has other inbuilt brakes, and in some countries (like the USA) judicial review applies to the constitutionality of legislation.

    The notion and the scope of citizenship is also an interesting point with regard to fundamental rights.

    Without European influences, the UK lacks these guarantees, so from a "citizen's" point of view its human rights protection is more like a wooden palisade than a stone castle.

    However, the UK differs from the old Soviet Union in that it has free elections, not a permanent one party dictatorship (although the system of representation is far from fair and ideal).

    You must have encountered technical problems, since so many similar versions of the same comment were posted, but I sincerely hope that I deleted only copies with the same content.

  3. Thanks for your response and for deleting the duplicate posts caused by an error alert advising that the url link was too long.

    History will be the judge as to which is the better system to deliver us from tyranny. Cracks are appearing everywhere, that much is clear. As you will possibly recall from previous exchanges my personal preference is for governance along the lines of the Swiss Confederation with its almost constant Constitutional amendments via national suffrage operating with safeguards.

    Why the EU has resorted to tyranny as defined by Karl Popper will I feel sure provide an ongoing puzzle for future historians.

    Another query, why does your EU blogging service refuse entry to blogs such as "Ironies Too", which with its forerunner "Ironies" has been covering the dreadful EU and its forerunners in considerable detail over many, many years?

  4. Martin Cole,

    The European Union is a unique example of voluntary and peaceful cooperation between European states; deep in some areas, shared powers in others and a complementary role with regard to some policy areas.

    Our exchanges have led me to believe that neither of us sees the EU in its present form as ideal.

    However, I think that the EU should become both a representative democracy and more effective in areas such as foreign policy and defence, in other words a federation.

    Could you specify what you mean by "my" EU blogging service, which you say is refusing you entry?


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