I’ve heard David Starkey say that the original intention was a set of principles not actual laws. But Maxwell Ffyfe realised it would have to be embedded in the law of European governments because they were based on Napoleonic Law. English Common Law after 1689 had most if the safeguards contained in the ECHR anyway.
They were drafted entirely for the Continent never for us, who had lived free from tyranny since the civil war.
Today, even the philosophical concept of “rights” has been twisted completely out of shape transcending in to every day vernacular. Dalrymple has written and done some great lectures on how they have gnawed on society and created the gravy train of victimhood in the UK.
If we are to leave the preparatory ground work must be to school people in how rights can be turned upon ourselves and dilute democracy beyond measure.
Personally I like the debate in an empty Commons where JRM destroys Rory Stewart on the subject!
Great comment David. It was actual illegal for the SC to rule on prorogation since it is clear in BoR 1689 that the judiciary, subordinate to the elected government had no right to rule on Parliamentary procedure. Only the government itself can do that.
Thus all these Remainers that claim it was “unlawful” are wrong. It could only be unlawful retroactively!
In other words it was the SC itself that broke constitutional law.
I'd add to the list of questions to answer Pete a reposte and policy response to the arguments (good faith or otherwise) that there are a host of other international agreements that in some way reference or rely (or are said to rely) on the UKs 'membership' of the ECHR, i.e. we cant leave the ECHR as it will undermine/destroy the Good Friday Agreement, Agreement with EU etc.
Increasing knowledge of fhe history and impact of English Common Law, and the protections derived from it also important.
This is an issue, probably the biggest. The Good Friday Agreement says that NI citizens can go to the ECHR, and that the convention will be incorporated into the law. The Brexit deal also references the ECHR.
So if the UK as a whole unilaterally leaves, what happens to those agreements? I'm not sure the difficulties are insurmountable, the GFA speaks of the UK and Ireland as members of the EU - and Brexit happened without destroying the whole agreement. But it will cause significant legal uncertainty and if the Conservatives decide to go down this road they need to really plan for it. Reform can just bluster but the Tories need a real plan.
For the interaction with the GFA, read Article 56 of the ECHR - we can have it apply to a subset of our territory. Hence we can have it apply in NI alone.
That could be achieved by leaving, and immediately rejoining with it applying to NI alone. It may be possible to achieve it via other means.
So the GFA preventing us from leaving the ECHR as it applies to GB is a fallacious argument.
Now having it apply to NI alone could well scupper the rest of the Withdrawal Agreement, and/or the Trade and Cooperation Agreement, but the NI Protocol (even as renamed) would still be able to survive, as would the GFA.
As your quote from Lord Sumpton said about the ECHR "It has transformed the convention from a noble body of truly fundamental principles, almost universally shared, into something at once intrusive and banal. "
The problem is now it's two tier, it's woke captured. If you're a foreign terrorist you get every protection. If you're a white Brit none at all - it has a right to free expression yet that doesn't stop people being locked up for Facebook posts.
"Robert Jenrick is making ECHR exit central to his leadership campaign."
After decades of seeing our nation subverted and destroyed form within by both political parties, the utterances of Robert Jenrick deserve to be taken with a JCB load of salt.
How can it be factually ascertained as to the frequency the ECHR invoked in the defence of a potential deportees ? And of these cases how many does the ECHR defence actually stand allowing the potential deportee to remain ? It is critical in making effective policy to get to the core of the issue before a prospective & deliverable solution can be created never mind a bill of rights for UK citizens.
From memory, the response by Kilmuir to Heath over EEC membership stated his opinion that for an institution to have power within the UK, it must be under the jurisdiction of the crown. That or every item having power within the UK would need parliamentary approval on a case by case or law by law basis. Any other situation would be treason or praemanuire.
Naturally this was ignored and the British people were taken into a political union with its institutions having superiority over our own. ECHR being the same.
EEC and ECHR membership are both unconstitutional and anti democratic.
I've subscribed to paid to help with this project. It worries me nobody knows what is going to happen if we leave but it's repeatedly spoken about as the only option. If it can be as good as the flexcit monographs it would be very welcome.
Not sure it's the same thing, exactly, but there was something called gold-plating - when EU directives were transposed into UK legislation. My assumption has always been that this was as a result of activist British civil servants levering in their own hobby horses (if they somewhat fitted the topic being legislated).
This thread has highlighted that it may simply have been due to technical differences between European and British approaches to law and legislation.
In either case, I'm certain Richard (and probably also Pete, in past blogs) has written about 'gold-plating'.
And like you said, David, I seem to remember examples being given of, what, a 4-sheet EU directive turning into a huge and lengthy tome by the time it became a UK Bill.
It seems that few realise how Common Law defines our culture. As you suggest, Napoleonic Law is top down; so very different. The two are incompatible, which was one of reasons we had to leave the EU.
I think the other 'inversion' that I viscerally despise is the 'precautionary principle'. I'm sure there are cases where it seems obvious it should be borne in mind. (Or it gets wheeled out, and other options airbrushed out of existence, to push agendas - climate being one such). But deep down - to me, at least - it still feels very "guilty until proven innocent".
I'm not even sure this was an EU innovation. Or one adopted from the UN.
I’ve heard David Starkey say that the original intention was a set of principles not actual laws. But Maxwell Ffyfe realised it would have to be embedded in the law of European governments because they were based on Napoleonic Law. English Common Law after 1689 had most if the safeguards contained in the ECHR anyway.
They were drafted entirely for the Continent never for us, who had lived free from tyranny since the civil war.
Today, even the philosophical concept of “rights” has been twisted completely out of shape transcending in to every day vernacular. Dalrymple has written and done some great lectures on how they have gnawed on society and created the gravy train of victimhood in the UK.
If we are to leave the preparatory ground work must be to school people in how rights can be turned upon ourselves and dilute democracy beyond measure.
Personally I like the debate in an empty Commons where JRM destroys Rory Stewart on the subject!
Great comment David. It was actual illegal for the SC to rule on prorogation since it is clear in BoR 1689 that the judiciary, subordinate to the elected government had no right to rule on Parliamentary procedure. Only the government itself can do that.
Thus all these Remainers that claim it was “unlawful” are wrong. It could only be unlawful retroactively!
In other words it was the SC itself that broke constitutional law.
I'd add to the list of questions to answer Pete a reposte and policy response to the arguments (good faith or otherwise) that there are a host of other international agreements that in some way reference or rely (or are said to rely) on the UKs 'membership' of the ECHR, i.e. we cant leave the ECHR as it will undermine/destroy the Good Friday Agreement, Agreement with EU etc.
Increasing knowledge of fhe history and impact of English Common Law, and the protections derived from it also important.
Thanks.
This is an issue, probably the biggest. The Good Friday Agreement says that NI citizens can go to the ECHR, and that the convention will be incorporated into the law. The Brexit deal also references the ECHR.
So if the UK as a whole unilaterally leaves, what happens to those agreements? I'm not sure the difficulties are insurmountable, the GFA speaks of the UK and Ireland as members of the EU - and Brexit happened without destroying the whole agreement. But it will cause significant legal uncertainty and if the Conservatives decide to go down this road they need to really plan for it. Reform can just bluster but the Tories need a real plan.
For the interaction with the GFA, read Article 56 of the ECHR - we can have it apply to a subset of our territory. Hence we can have it apply in NI alone.
That could be achieved by leaving, and immediately rejoining with it applying to NI alone. It may be possible to achieve it via other means.
So the GFA preventing us from leaving the ECHR as it applies to GB is a fallacious argument.
Now having it apply to NI alone could well scupper the rest of the Withdrawal Agreement, and/or the Trade and Cooperation Agreement, but the NI Protocol (even as renamed) would still be able to survive, as would the GFA.
Perhaps first our democracy needs to be fixed so that it is actually representative.
Excellent start thanks.
As your quote from Lord Sumpton said about the ECHR "It has transformed the convention from a noble body of truly fundamental principles, almost universally shared, into something at once intrusive and banal. "
The problem is now it's two tier, it's woke captured. If you're a foreign terrorist you get every protection. If you're a white Brit none at all - it has a right to free expression yet that doesn't stop people being locked up for Facebook posts.
We don't really know if those are one offs blown up by the media or run of the mill. Who keeps a watch on the ECHR rulings day by day?
A one-off is a one-off too many.
"Robert Jenrick is making ECHR exit central to his leadership campaign."
After decades of seeing our nation subverted and destroyed form within by both political parties, the utterances of Robert Jenrick deserve to be taken with a JCB load of salt.
How can it be factually ascertained as to the frequency the ECHR invoked in the defence of a potential deportees ? And of these cases how many does the ECHR defence actually stand allowing the potential deportee to remain ? It is critical in making effective policy to get to the core of the issue before a prospective & deliverable solution can be created never mind a bill of rights for UK citizens.
From memory, the response by Kilmuir to Heath over EEC membership stated his opinion that for an institution to have power within the UK, it must be under the jurisdiction of the crown. That or every item having power within the UK would need parliamentary approval on a case by case or law by law basis. Any other situation would be treason or praemanuire.
Naturally this was ignored and the British people were taken into a political union with its institutions having superiority over our own. ECHR being the same.
EEC and ECHR membership are both unconstitutional and anti democratic.
I've subscribed to paid to help with this project. It worries me nobody knows what is going to happen if we leave but it's repeatedly spoken about as the only option. If it can be as good as the flexcit monographs it would be very welcome.
Not sure it's the same thing, exactly, but there was something called gold-plating - when EU directives were transposed into UK legislation. My assumption has always been that this was as a result of activist British civil servants levering in their own hobby horses (if they somewhat fitted the topic being legislated).
This thread has highlighted that it may simply have been due to technical differences between European and British approaches to law and legislation.
In either case, I'm certain Richard (and probably also Pete, in past blogs) has written about 'gold-plating'.
And like you said, David, I seem to remember examples being given of, what, a 4-sheet EU directive turning into a huge and lengthy tome by the time it became a UK Bill.
It seems that few realise how Common Law defines our culture. As you suggest, Napoleonic Law is top down; so very different. The two are incompatible, which was one of reasons we had to leave the EU.
I think the other 'inversion' that I viscerally despise is the 'precautionary principle'. I'm sure there are cases where it seems obvious it should be borne in mind. (Or it gets wheeled out, and other options airbrushed out of existence, to push agendas - climate being one such). But deep down - to me, at least - it still feels very "guilty until proven innocent".
I'm not even sure this was an EU innovation. Or one adopted from the UN.