Human Rights (HR) are a necessity for millions worldwide and should be supported where equality is not a given, where children are forced to labour. But has HR in Europe been hi-jacked by a partisan Liberal establishment? HR is a political instrument, it is promoting a political ideology; some may argue that that is a positive thing. Early Christians would doubtless applaud a move towards equality. Socialists too, would light the darkness with their rendition of the Red Flag at the prospects of equality.
However, both have a chequered history. Christianity has haemorrhaged into so many splinter organisations with a built in intolerance of other groups. The politics of the individual has become the dominant factor in their religious outlook, and the more deeply held the political conviction the more intransigent becomes their stance. Similarly the Socialists/Communists began on the basis of equality for all, “from each according to their ability, to each according to their need”. Factionalism has cost the socialist movement dearly. Add a failure to win the hearts and minds of the people and you end in dictatorship. As with Christianity, the politics of the individual has usurped the altruism of the principles of the movement. Thus the great movements have come and left an embedded bitterness in their wake. Will the same be true of HR?
In the preamble to the European Convention of Human Rights (ECHR) it states that it favours: democracy, equality, rule of law and freedom, all wonderful attributes but does the rhetoric hold up to the scrutiny? Once HR had been adopted by the individual states of the European Union (EU) it began to pervade every aspect and level of democratic government. No Body, no Council can overturn a proclamation of HR. In essence HR becomes the conductor’s baton; it controls each detail of political decision making. Some may liken it to a computer virus or perhaps more aptly, Big Brother of 1984 fame. It becomes the one indivisible law!
In 2009, a new Charter of Fundamental Rights was adopted and became ‘binding’ on Member States. The blurb denotes it as having been sanctioned in the Treaty of Lisbon, December 2009. In fact, it was cited but not written into the Treaty. It was a sleight of hand without due regard for democratic procedure. Therefore it is a diktat from the Politburo, sorry, the Council of Ministers. The sleight of hand may appear innocuous but does it illustrate contempt for both the people and democracy? Does such a manoeuvre pose a threat to democracy?
On the ECHR itself, Paul Mahoney, a UK European judge is quoted, “The open textured language and the structure of the Convention on Human Rights leave the court with significant opportunities for choice in interpretation”. He added, “In exercising that choice, particularly when faced with changed circumstances and attitude in society, the Court makes new law”. Daily Mail October 3 2013
Thus a cabal of judges in Strasbourg can override any national law irrespective of the democratic principle. Note the words ‘significant’ and ‘interpretation’ in this context ‘significant’ means an open book and, ‘interpretation’, well; every view has a north – south – east – west and more besides. HR is a portal for greater integration via the law. Moreover, when Mahoney talks about, ‘changed circumstances and attitudes in society’ he is referring to the ‘living instrument’. This allows the judges to change the law based on their perception of how society has changed. “The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days”. www.echrblog.blogspot.co.uk/2012/03
A further salient point is taught to our six form students: “…will interpret the Convention in line with current morality and values”. www.sixthformlaw.info/01_modules I have several problems with the ‘LIVING INSTRUMENT’.
- When, how and who, decides that society has moved its outlook significantly?
- What is popular today may not be tomorrow, so we could end up with a horrendous mishmash of banal laws.
- How does this encompass the democratic rights of the people?
Scenario: Given the opportunity to decide via a referendum, how would the people vote on the following matters?
- Death penalty for multiple murderers. Terrorists.
- Mandatory life sentences for serial rapists, people traffickers?
- Refuse entry to the UK and deport any criminal once the sentence has been served.
The EU would not under any circumstances sanction any of the above. (Protocol 6 & 13 do not permit the death penalty) Meanwhile, it is just as obvious that the electorate would overwhelmingly support each proposal suggested. The conclusion is therefore, just as obvious, that the leaders of the EU and the judges are blatantly out of touch with the people today and therefore the living instrument is a sham. The ‘living instrument’ is in effect a licence to change the law on a whim! In that regard the ‘living instrument’ is wholly undemocratic. It is a Big Brother reality!
A strong opinion is given by Richard G. Wilkins & Marya Reed on the Fundamental Charter: “Comparative constitutional history suggests that despite its own proclamation to the contrary, the Charter may well alter substantially the respective power of the EU and its member nations”. They maintain having carried out a nine (9) nation comparison: Belgium, France, Germany, Ireland, Italy, Netherlands, Portugal, Spain and the UK that, “This comparison suggests that the Charter will almost certainly broaden EU control over significant range of social policies”. www.eurocritic.demon.co.uk/rights.htm Open Europe (.org.uk) claim that having interviewed several European Judges that the change will affect national independence. Therefore the Charter of Fundamental Rights must face further scrutiny.
BIG Brother is Here!!