Jacob Rees-Mogg and Rory Stewart Debate Human Rights

the substitute begin pleased by praising the Honourable member for raising this bill because I think it is a very very important issue something that clearly really irritates many many people in Britain and it is very dangerous we've got to a situation where human rights is being talked about as though it was some trivial unnecessary asyou and it's connecting people's minds with phrases like health and safety friendly so it's a very very sad effect the question however for us today is how do we deal with this problem so the honourable members very eloquently explained we have a problem has very eloquently given countless examples of things which intuitively make many people in the British public extremely anxious swingley unhappy with the judicial institutions unhappy with the political institutions and we should respect that it might be tempting and indeed some lawyers do to simply say the British public isn't focused enough on the moral details of this case isn't focused enough on the legal details of this case and to somehow trivialize their objections this would be unfair because there's obviously something important deep and intuitive going on that makes people anxious about this kind of activity under the banner of human rights the question is what is our solution to it how do we look at this and I think we have to begin with a sense of what human rights are some acceptance weaker if I could politely challenge slightly the definition of human rights that has been put forward by the Honourable member without calling into question his overall point which is that we are now in a mess it would seem to me that we can begin with the definition of human rights that would say to say that somebody had the human right is to say that anyone anywhere treated in this fashion is wrong and that their possession of that right is not relative to the costs or benefits of upholding it in any particular case now this sounds very technical it sounds very pathetic but it is an important thing to establish at the beginning of this debate Human Rights the based on donation of dignity they're based on a nation of inviolability and they are in their nature universal to say that somebody has a human right is a statement about their moral status it's not a statement about their nationality it's not a statement about their citizenship it is to say that anyone anywhere treated in this session is wrong and secondly although there may be a threshold above which that right could be suspended below that threshold their possession of the right is not relative to the costs or benefits from holding it in any particular case so to go from the abstract to the actually giving way but surely once there is a threshold the right is not absolute this is a very important point raised by the Honourable member to give an example the basic conception of human rights is based on a notion of human dignity and it's based on a notion that human should be treated as n from themselves rather than as a means to an end in other words it is a sort of Con Thien worldview it has an absolute view of the world on how people should be treated but as a very extreme level the Maivia threshold in which intuitively we in this room would feel intuitively that you could suspend that right so to give an example if a child for example was in possession of information of a ticking bomb which was going to destroy a million people in the city we might feel that in that situation it was justifiable to twist the child's thumb to find out where that bomb was in other words there might be a threshold so extreme yes these are situations almost hypothetical but so extreme in which our human intuition would be that the rights would be suspended but below that threshold the possession of the right is not a function of the costs or benefits of upholding it in any particular case so mr. Deputy speak to give an example it would not be justifiable in any situation to kill one individual in order to harvest their organs to save five other individuals a friend on his first example because he has said that it would be justifiable to save a million people but the obvious question is what about 500,000 what about 50,000 what about 10,000 what about one this is a fantastic argument being made mr. Deputy Speaker and the argument that I was trying to make to the Honourable member is that in the case of five or ten or fifteen or twenty people our moral intuition is that it is unacceptable at another level at the level of a million our moral intuition is that it might be acceptable this is a very very difficult point right the point that I'm trying to make is that we are in a sense deontologists where absolute up to a certain threshold but there is a certain threshold at which a utilitarian or consequentialist capitalist comes in so before the Honorable member intervening again a very important point before the Honorable member intervenes again as mr. Deputy Speaker I said just earlier if it were a case of one person being killed to save sight in other words the idea that somebody could be killed their organs would be harvested and those organs would be used to keep five people alive that would not be justifiable their possession of their invulnerability their immunity their right to life is not proportional to the costs or benefit of upholding it any particular case there may be hypothetically and we almost never get anywhere near this kind of special as a hypothetical theoretical point a threshold at which a right might be overruled by a consequentialist consideration the one against the million but below their threshold the possession of the right is not relative to the costs or benefits about holding it in any particular case vulnerable friends were giving way again but I think he's rather sold the past once he had this child whose thumb could be twisted because if to save a million people the child's thumb can be twisted can the child's arm be broke and we are now getting into a relative argument and we find that there is not an absolute on this and the same applies to example of harvesting organs if you can save five people you may say that is not allowed but what if you could save five million people from one person's death does that then become justifiable Rory Stewart the unremember has asked mr. death a secret question which is a very very important question of moral philosophy and these are questions of moral intuitions we're trying to create in our legal system and our moral prism something that reflects our common sense intuitions as humans we try to interrogate them we try to be logical we try to go down to first principle but our common-sense intuition I feel is that humans have a moral status that they are available that they have an intrinsic dignity that they should be treated as an end in themselves not as a means to an end but and this is the case of one against the million we also have a strong moral intuition that there may be certain extreme circumstances in which it is justifiable to overrule and individuals rights but only in the most extreme circumstances there are different ways in which we deal with it in the German legal system for example in that case the argument would be made that although it is morally justifiable to twist the child's thumb in that situation it is not legally justifiable and the individual who twisted the child's thumb in the German legal system would then be prosecuted and convicted but congratulated morally for having made the correct moral decision if the incorrect legal decision these things however are purely in our normalised hypothetical we do not come across ticking bombs there are not children who are aware of a million people in the everyday life that we live human rights are in themselves invalid which is why as we move forward to look at the case brought by the Honourable member we need to ask ourselves what is it that's wrong with the current system and it would seem to me that there are four possible answers to that question and the Honourable member has given four possible answers to that question one of them which the Honourable member from Somerset has raised is a question of sovereignty so the first possible answer the question of what is wrong with the current set of non rights is a problem of parliamentary sovereignty this is a notion which we could explore a bit more depth that Parliament is sovereign that the European Court is not acting in accordance with the British constitution by overruling the decisions the British Parliament the second argument that could be made is to say that a question like prisoners voting to take a a recent and difficult question is purely relative that it's culturally relative one could take a situation that would simply say the reason why the European Court should not get involved in prisoners voting is not because of sovereignty but they cause it to question that's culturally relative I say tomorrow you say tomato you allow prisoners to vote you don't allow prisoners to vote these things are purely subjective they're based in a particular cultural historical context the European Court shouldn't be fasting about it the British think one thing the Spanish think another there's no way of resolving it it's purely relative the third possible argument that could be made is to say that it is dealing with subjects that are purely trivial this argument would say that voting rights for prisoners simply don't matter the may theoretically be a moral solution to the question of whether or not prisoners should have vote but this is a trivial issue it isn't something that European Court should be dealing with the European Court should be looking at more important issues and the fourth teittleman which is the argument to which I'm tempted to go is to say this isn't fundamentally a problem of sovereignty it isn't fundamentally a problem of relativity it isn't fundamentally a problem of triviality it is a problem of the European Court using the wrong principles to come to the wrong judgments the sceptic will just commit me just to goes through there's four arguments in order to expand on them in more detail the first argument is the Iseman surround parliamentary sovereignty which the Honourable member for Somerset has dealt with with such eloquence it is of course true that traditionally within the British system parliamentary sovereignty was supreme and although dicey talks about two things parliamentary sovereignty and the rule of law it is quite clear that what dicey means by the rule of law is not what Lord Bingham means by the river law in other words the rule of law in the conventional British interpretation is not something equivalent to the US Constitution it is not an independent body of law against which parliamentary statutes can be judged it was not a situation Britain in which an act of parliament could be struck down by a court on the grounds that it did not accord with a rule of law that notion which was the notion of the fifteenth and sixteenth centuries that was an independent common law which trumped the actions of Parliament was put aside and essentially for the last 300 years we have believed that Parliament is sovereign under this interpretation the European Court cannot possibly be engaged in trying to subjugate the British Parliament's and at it's very best all the European Court is engaged in is an international treaty obligation in which the British Parliament has voluntarily determined that it wishes to accept the rulings of the European Court but it can choose to ignore those rulings that wishes and in doing so it would not be breaking British law it would simply be in breach of its international treaty obligations so deep is this belief in the British mind that we are now the only advanced democracy in the world that makes no explicit distinctions between constitutional law and normal law in other words we have a situation where as the Honourable member who's proposed this bill that so eloquently explained our Constitution shifts continually over time and if it's very worst as the Honourable member said it moves like a reed in the wind it is possible for a simple mature in Parliament for the people gathered today to change the fundamental Constitution of the British nation theoretically possible in a way that it is not theoretically possible in any other advanced democracy in the world every other democracy has a distinction between constitutional law and normal law so that if you wish to change the fundamental Constitution you need a special procedure generally northern European countries there is a demand for two-thirds majority in parliament some European countries there's much more of a focus on a referendum in countries such as Italy there's interest in an intermediate vote so the Parliament has to be dissolved and this must be put to the electorate through a general election before the constitutional change can be introduced all of this is designed to make it very very difficult for a parliament in the United States or indeed any other advanced democracy in the world to change your constitution the idea is and this is not the British idea but the idea in all these other countries is that a government of parliament is temporary the people are public and the Constitution exists to protect the people from the Parliament it would seem however that basing our entire opposition to the European Convention on Human Rights on parliamentary sovereignty is a thing which could be made and indeed the Honorable member laurqui sunset has made the case on the basis of British Constitutional History but that would be an argument fundamentally on the basis of political institutions not on the basis of morality it is difficult to see an ethical case difficult to see a moral case for the motion of untrammeled parliamentary sovereignty as an alternative for the protection of the environment of the individuals right indeed the modern notion of democracy share in every other advanced democracy in the world mr. Deputy Speaker is a notion of democracy which combines representation of the majority with the protection of the individuals rights they give away vulnerable president forgiving where identity is fully established the inviolability of the individuals rights that he has stated it I think not established this is a fundamental philosophical debate which the Honorable members welcome sunset has raised with enormous eloquent and the answer to the question is that one cannot establish the existence of inviolable rights unless one accepts to further principles the Equality of humans the notion that myself the deafness the deputy speaker the Honourable member for North East Somerset and indeed somebody that we have never encountered at the other end of the Congo is in all important respects equal in dignity and rights this is an insight of logic an insight of human consciousness a basic commitment to the notion that although we may feel that we are special then we may be tempted to feel that we are the only people that exist as we become adults we acknowledge that other people are themselves independent more anaxes who possess exactly the same dignity the inviolability the rights of the human being which the Honorable members raised is derived from that notion of equality and dignity what it says well tomorrow friend once again and for the record I think the Deputy Speaker is so many leagues above me that I'm not sure that that my own friends right and except if one takes his point the Equality of humanity the equality before God which I believe as a matter of faith that does not mean that rights are always applied equally and even in this bill on the right to life that most essential right you see it qualified in the case of self-defense so rights immediately become relative that God I think we're all equal unless it's a long intervention where I may actually show a little more power or assume or equals take the steps here thicker right are indeed qualified this does not mean rights a relative this is an important distinction the subclause which the Honorable members referred to in the bill indeed establishes rights but says that under certain specific circumstances that rights may be qualified or overruled that is not a statement that the right is relative it's not a statement that the right to life contained in the European Convention Human Rights is purely relative it's not a statement that below the threshold of the qualification and I come back to the threshold of the qualification below the threshold of qualification in other words the specific circumstances in which that right may be presented below the threshold of that qualification this is what makes right quite different from any other form of moral law below the threshold about qualification your possession of a right is not relative to the costs or benefits of upholding it in a tickler case on the question of the right to life your right to life may be suspended at a certain threshold those thresholds described in the European Convention include thresholds on civil disorder they include thresholds relating to military law but below that threshold your right to life cannot simply be looked at in terms of costs or benefits not holding it in any particular case in other words thank you very vulnerable friend once again but this rises so clearly absolute because if you think of the old riot Act which provided for the militia to start shooting that was a decision at that time to maintain order required immediate use of faithful force that is no longer thought to be appropriate it is therefore a relative judgment relating to the balances of the individual and the collective mr. Deputy Speaker I think we need to be very very clear what we mean by relative there is a notion of relative which the Honourable member for North East Somerset is rehearsing which is simply to say that rights and moral values evolved in a historical context it is simply a question of historical facts as the Honourable member says that different cultures at different times have taken different moral positions Aristotle along with his other great observations of course believes that women and slow Days lack souls today we realize not simply that it's relative not simply that he thinks one thing we think another but that he is wrong he is wrong because moral language is implicitly not relative moral language is in its very structure absolute moral language does not say I intend to happen to like you killing someone but if you want to kill someone that's up to you in other words moral language doesn't say that killing someone is like you liking chocolate ice cream and myself liking strawberry ice cream moral language says it is wrong it ought not to be done moral language is about questions and ought not questions of is but mr. Deputy Speaker it goes immediately on containing it ought not to be done to add except in the certain circumstances try again the central point to be made is the notion of moral obligation the notion of what ought or ought not to be done relies on two conflicting principles which connect at the moment of the threshold those two conflicting principles are the notion of the inviolability and dignity of the human being on the one hand and on the other hand a consequentialist or utilitarian argument of the greatest happiness of the greatest number philosophically the origins of these two types of argument are entirely distinct one of them is a de ontological argument it simply states the dignity of the human being and their environment e the other is an instrumental argument it's an argument based on consequences or results our legal system and indeed our moral intuitions combine these two and the two meet as a point of threshold this is what we mean by aught what we mean is exactly what the Honourable member for North East Somerset says the individual ought not to be treated like this except in very extreme circumstances out of certain thresholds and below that threshold the individuals possession of the right is not a function of the costs or benefits without holding it in any particular case this is important because this is a distinction between a relative position which says I can take your life whenever I feel like it on the basis of no moral argument and no mark the logical position and a separate position which says mrs. X Iike I may not take your life there are certain extreme situations in which it could become legally permissible to do so but I may not the distinction between human rights and a relative position is a distinction on permissibility it's a distinction on what may be done before the Honorable men from North East Somerset intervenes again just to be absolutely clear the distinction is this when I say mr. Deputy Speaker that somebody has a right not to be tortured I am saying they may not be tortured I'm not saying they will not be tortured there might be a horrible situation in which their government torches them the statement is a moral statement it's not a prediction about the future it's a statement about what we morally give permission to do you may not be tortured you may not be killed it is then possible to state certain threshold circumstances in which our moral intuitions in terms of human rights shift tomorrow intuitions in terms of the consequentialist worldview in which we say one might be killed for the benefit of a million these are nice questions of moral philosophy usually they don't come up in our everyday life our everyday life is based on the dignity and inviolability of the human being regardless of circumstance my own friend for giving away needs making it a very powerful argument wooly highlights my mind is a key difference of civil law and common law in common law we would take a utilitarian approach if a plane was heading to London with 100 people on board on a button nuclear bomb we would say save the city but in Germany under the civil law code they would say you can't touch the plane because the enviable 'ti of their right to life and that is to my mind at the heart of confident problems that I've been wrestling with with this bill thank you for step to stick it the example of the plane is a very very good example it's an exact example of where our moral intuitions collide my instinct would be that neither ourselves nor a German legislature would be comfortable with the decision either way these are terrible terrible decisions in which two very very deep moral intuitions the moral intuitions that individuals should be treated as anything themselves and not means to an end which is course why the German Supreme Court holds as the Honorable member so rightly pointed out that a plane could not be brought down in those circumstances could not be brought down with circumstances because the German Supreme Court feels deeply that if you were to bring down those people in that circumstance you would be treating them as a means to an end rather than an end in themselves you would in effect be doing to them something similar to the idea of moving ahead with killing one person in order to harvest their organs to benefit five others the idea being that the calculus that site has been benefited is not enough to outweigh the harm done to one that's an important moral intuition but of course the Honourable member is correct in the end most of us would disagree I personally would disagree the Honourable member presumably would disagree the situation of that sort where a million people are going to be killed by an atom bomb another deeper stronger moral intuition comes in which we often describe in terms of common sense but is in fact a utilitarian calculus which is to say there is a threatened threshold of absurdity beyond which the protection of the rights of the individuals in that plane no longer makes sense the Honourable level Northey some set has been very good at pointing out the contrary that these are two separate philosophical principles and the question of where that threshold Club in that terrible judgement which a politician would need to make in that situation is not one that can be resolved except through a very very deep understanding of the particular facts of an individual case I'm grateful to my honourable friend I'll try and make this my last intervention but I think once you accept the threshold which has become fundamentally arbitrary and it is merely a matter of arguing where that threshold should be set and therefore it is the question of the legitimacy of who sets that threshold whether it should be the Queen in Parliament or whether it should be far in court next thank the Honourable member for not the concept very much there is a disagreement here and it's not a disagreement that we can paper over the question is where should we put the weight of sovereignty how important is sovereignty does sovereignty confer some form of immunity is there some magic in this chamber which allows the legislators in this chamber to do whatever they want is it the case of Lord Hoffmann suggested in the judgement that if this chamber wished it could simply flout human rights and if that statement may final Coughlin is that statement a statement about political facts and institutions or is it a statement about morality is it that we think that it's simply a fact that this Parliament could do whatever it wanted or do we feel this Parliament ought to be able to do whatever it wants it and on this is base our whole conception of democracy those who feel that this chamber not only could but ought to be able to do whatever they want are basing themselves on one principle only which is the principle of majority representation where I suspect there may be a disagreement between myself and the honor members of North East Somerset is the notion that democracy is not based on one but on two principles on majority representation and on the protection of minority right and that in the absence of the second criteria we cease to be in the full sense a democracy this is a very difficult argument to make because of course in this country we have every reason to be proud of the performance of this Parliament all those theoretically constitutional anxiety leads us to believe that this Parliament could do truly barbarous things as a matter of fact this Parliament is not in fact consistently this Parliament has shown itself very very respectful of the unwritten laws of the British constitution and when Parliament has been tempted as indeed mr. Deputy Speaker Parliament attempted in the abolition of the House of Lords to fundamentally change the Constitution of the United Kingdom through a simple majority in the House of Commons Parliament refused to take that opportunity Parliament backs away from it it's Parliament's reluctance Parliament's innate conservatism it's caution around this use the Constitution which has meant that right the way from 1911 to the current day people pushing for a written constitution or more formal constraints on the power of Parliament haven't won through this is good and it shows two very positive things it shows firstly a very important principle principle common sense something that everybody in this room agrees with which is we do not want to live in a world of technocrats we like the fact that the British public hazard say we like the fact that the common sense of the British public permeates this Parliament that at our desk and we're not always at our best but at our best we are a lens that connect the executive to the voting public that we acts as a mediator between public opinion between the sentiments and imagination and culture of the British people on the one hand and the laws passed in on the other nobody in this chamber wishes to pass to a world where we vest our power in technocrats or experts where we somehow say that some form of Mario Monti is going to come in with some great insights who knows what's best for the people it is unruly common sense which means that the public has tended to respect its landscape who tended to challenge things that the government may wish to do in relation to wind turbines has refused to cooperate as indeed the French public occasionally refuses to cooperate over farming with the theoretical ideas of experts and governments the second reason to be proud of the sovereignty of parliament is that Parliament reflects a culture but the question to the Honourable member for Pete's elitet who has been one of the great supporters of untrammeled parliamentary sovereignty is do we have the confidence that the unwritten rules the culture of this house the deep understanding of the history of the British constitution which meant in 1911 that members of parliament were very very cautious about changing the Constitution still hold or did we in the vote over the House of Lords bill come very very close to the brink was there a possibility that we are suffering from a collective amnesia but one can no longer say that the British Parliament is so deeply entrenched in its constitutional history that it can be guaranteed never to fundamentally change the British constitution if we are moving into a world in which we are getting into that danger zone at that point my belief is we need to follow the example of every other advanced democracy in the world which is the separate constitutional role from normal law and to say that for a fundamental change to the Constitution which affects the rights of citizens this is why this is relevant to the European Court on human rights we must ensure that special procedures have followed the special procedure that we have tended to develop through precedents over the last 40 years is of course a referendum we may not want a referent the fundamental way of changing the constitution we may want to adopt the different procedure a two-thirds majority a free votes in the house which of course is what the previous government used to deal with you to the House of Lords but we are moving to a world where we need a proper procedure and the reason why this is relevant to the debate today is because the question of parliamentary sovereignty in the relation to the European Court is at the nub of this issue the argument against the European Court cannot simply be that Parliament is sovereign absolute and always right and should never be challenged we actually have developed an entire doctrine of international intervention around the notion that sovereignty does not confer immunity that the rights of the individual citizens in a country can trump the sovereignty of opponent the second argument that could be made moving on mentioned sovereignty and with apologies for having paid so much attention to sovereignty to move quickly through the second argument is the question of moral relativism and it may be that in the exchange for the Honorable members North East Somerset that's been covered adequately the idea is mr. Deputy Speaker a moral relativism that the question of prisoners voting is purely relative I like chocolate ice cream mr. Deputy Speaker maybe do you like strawberry ice cream these were questions of taste they're not questions and moral decisions the spanish believe prisoners should have votes the British believe British shouldn't have it it's purely relative there's no way of resolving these things this is a very dangerous argument to say these things are purely relative it's a very dangerous argument because of course all these questions about rights are fundamentally issues about morality and moral language is a statement about what is right and what is wrong what we ought to do what we ought not to do it is not a statement of personal taste it isn't a statement akin to saying I like red you like blue and there's no discussion about it what one says is you are wrong we must believe it is possible to resolve the question of who is right and who is wrong over the issue of prisoners ratings and to resolve it through moral investigate and debate thank my old friends cooking we've been very generous with taking interventions and I would say it's about a different issue which is Spanish presence should have the vote the British do not and and the error is the one size fits all approach taken by the European Court what we should have is an acceptance that different countries will arrive at different solutions and not just thrust a uniform morality on all very powerful argument made by the Honourable member is indeed the argument made by Lord Hoffmann very powerfully Lord Hoffmann argues in exactly the way that the Honourable member had that universal right such as European Court of Human Rights are simply aspirational any universal code is aspirational but it is always national in its application in other words the argument made by Lord Hoffmann and by the Honourable member is that the European Court of Human Rights from the convention is purely aspirational it is a good way of encouraging people to behave better it is a good way of doing political lobbying is a good way of applying pressure but in it application human rights can only be national the notion being that human rights are relative to a particular historical or political context the idea being with the Deputy Speaker that the question of whether prisoners should vote is not something that could be determined in Lord Hoffmann use or the Honorable members view but not MIT and Lord Hoffmann T or the Honorable members use this question should not be determined by moral debate the question is absolutely specific to a particular historical or national context the real answer to where the prison survey depends on the difference between Spanish culture and British culture this is of course a position that I reject it's not a position I can accept because rights are absolute right a universal rights are invaluable it cannot be the case that your possession of Rights is relative to the particular circumstances of a particular culture it cannot be the case that the mere fact that you live in Saudi Arabia means that you have fewer rights as a woman it cannot be the case that the mere fact that you live in Taliban Afghanistan means that you do not have freedom of the press these rights if they are rights at all rest on one fact on one fact only the fact of your humanity not the facts of your nationality I'm old friends we're giving away again I ain't Lord Hoffman said that he were right to Universal in their abstraction but national in their application and I think what he's saying is one size fits all doesn't work you need room for what used to be called subsidiarity but in this debate has been called proportionality or indeed the margin of appreciation I think the margin of appreciation is central to getting the right settlement that all countries can live with honourable member brings us very neatly to the third question in this whole bill which is the question of subsidiarity in triviality so to move on from the big questions of sovereignty and meta epics the central question the Honorable member is made which is a really really important one is the question fundamentally a triviality Lord Hoffmann maybe suggesting that although it's some theoretical level it may be possible to resolve whether or not prisoners should vote as an actual practical pointless Deputy Speaker the issue to some extent doesn't really matter that its subsidiary it should be left to individual countries because it's just too disruptive to the international system to try to impose as the Honourable member says a one-size-fits-all that getting into that debate at all that trying to resolve the issue of whether or not prisoners should have the vote is simply disruptive to the international system this is a very very strong intuitive argument it's one that we might have a lot of sympathy with in this house as politicians it's not obviously a moral argument because a moral argument Lord Hoffman's argument doesn't hold water it cannot be the case as a question of ethics that nationality is the prime determiner of your rights but it may be true as an issue of practicality it may be true in terms of the sanity of the international system that you allow some flexibility and the process the problem with that palette and the reason why in the end although that's really tempting really ready tempting one should not go down that path is twofold for a legal system the question of triviality cannot be relevant it is not possible for a judge to simply determine a case on the basis of whether or not they think the question of prisoners voting is or is not in the grander scheme of things an important question the judge is there to try to make a decision on the basis of the law which is why we often get frustrated we often find it very peculiar mr. Deputy Speaker the classic example of course which is one of the things that I personally hate about the European Court of Human Rights was the case that was brought by the man who didn't want to give his name when he was caught speeding classic example when all the way up through the court system he argued that he should not be obliged to give his name when he was spotted by a speeding camera because he had a right of privacy he had a right to silence and he objected to the fact that he was going to be fined for giving his name the courts did not through the whole process say this is a minor trivial issue this is a minor speeding fine were not interested it went all the way up to Lord Bingham who had great length and with enormous politeness explained to the gentleman that he did not think that this gentleman's rights of silence extended to him not giving his name in relation to a speeding camera at which point the gentleman applied to the European Court and the European Court perhaps to the delight of speeding motorists seemed for a moment in favor of majority judgment to say the gentleman should not give his name because of this question of mike prysby these triviality arguments in other words they operate but more importantly much much more importantly judges and our politicians it is not for a judge to determine whether it would be politically disruptive or inconvenient for a particular judgment to be they may intuitively in their back of the mind be influenced by what they read in the newspaper they may be anxious that if they pass the judgment which is objectionable to the public that will undermine the legitimacy or the reputation of the judiciary but that cannot be a formal consideration in their decision it cannot be that the European Court in making a decision a European Court in other words a court which by its very nature has sanctions that that court can look at the question of whether making a decision is disruptive to the international system or undermines the legitimacy or the reputation of the court itself these cannot be the terms on which either moral or legal decisions are made although we may often feel they are the point to which political decisions that can be made and to give a very good example of that if we take the question of gay marriage which has been a very controversial issue in this chain it makes perfect sense for a political chamber to say this is a philosophical question which we for political reasons feel this is not the appropriate moment to raise it would cause too much disruption too much unhappiness but at the point at which the issue is raised at the point of which it is put to the vote at that point it no longer makes sense to talk to early in terms particularly in a case that relates to morals or ethics purely in terms of public opinion and disruption it becomes necessary to look at it on the merits of the case and examine it philosophically so the argument why the European Court should not get involved in process waiting cannot be that it's trivial disruptive the reason why there needs to be subsidiarity the reason why the country one size fits all cannot simply be from a moral or a legal point of view that it causes inconvenience to do so the Honourable member Trenton fitnah the fourth and final part then at the admin there are three arguments which we've considered which do hold water about European Court the first is the argument that the European Court should not exist simply because Parliament is absolutely sovereign as a moral principle as opposed to a statement of constitutional facts that is objectionable and indeed the current evolution of British culture and the behavior of the British Parliament over the last 20 years suggests that it would be very dangerous to put the entire reliance of our constitutional system and the protection of Rights on the individual decisions of the temporary majority and the sovereign Parliament the second argument that we have rejected is an argument that state the questions such as prisons voting rights of purely relative that there are no moral absolutes here that these questions cannot be resolved in any philosophical sense to return to the trivial example I produce that somehow moral arguments are simply a question of you think this I think that and of no way of resolving that it's all entirely relative you like chocolate ice cream I like strawberry ice cream and it's just a question of taste no we believe very very strongly that moral arguments are different from arguments to take there is an answer to these questions there is an answer to the question of whether prisoners should have voting rights it is based on whether we believe the dignity and inviolability of the prisoners status as a moral actor as a human requires them always in all circumstances to have a vote or not personally I feel that the argument is not convincing a prisoner is not entitled as a fundamental element of their human dignity and inviolability to a vote in all circumstances that however is not I believe a question simply a taste it's a question of moral argument the third argument which we are rejecting here is the argument that simply it's inconvenient to talk about these things that is disrupts the international system this is a very very tempting argument because we set up this Court David Maxwell Fyfe essentially drafted this document stared it through britain is in the rather unfortunate situation of embarrassment this was a court we were very proud of and if we were going to choose ourselves a little bit we would probably point out that for 40 years we rather enjoyed the fact the court was telling other countries how to behave we felt the point about this court probably intuitively was we were hoping this court would drag other people up to what we rather kompis he felt was our level we only became anxious about this court when this court turned round started telling us what to do as opposed to telling foreigners what to do and this is a rather difficult and embarrassing situation we liked the court when it insisted that countries in southern Europe should have habeas corpus we liked the court when it did a really good job on insisting there should be no detention without trial in southern Europe we only became anxious about this court when those very countries that we cheerfully made accord with British legal norms for 40 years turned around and with prisoners voting's tried to demand that we accorded with their legal norms so there's a very good reason for us to feel politically institutionally in terms of public opinion we don't like the idea and we would allow subsidiarity simply to avoid a political embarrassment however that is not as I've argued either a moral or a legal position it is purely a question of expediency and convenience and on expediency no moral principle can be based which brings us to the fourth and concluding argument with adapted speaker which is what should we really be doing about the European Court what we should be doing about the European Court is not giving up on the notion that there are inviolable human rights not giving up on the notion that those human rights are universal not giving up on the notion that the sovereignty of Parliament must respect the rights of the individual not giving up on the notion of moral absolutes or indeed taking on the notion that some political expediency can override moral or legal principles what we need to do is to go back to the fundamentals and challenge the moral and legal argumentation of the European Court and we would do so in exactly the way that the Honourable member who has proposed this bill the Honourable member for Dover had so eloquently explains the Honourable member for Dover is in essence not from my point of view producing something that should lead us to leave the European Convention what the Honourable member for Dover is pointing out is that the current operations of the court are resulting in absurd surreal consequences and that the way to address that problem is to look again at the document at the European Convention on Human Rights to look carefully at how it was drafted in 1950 and to look carefully at what ingredients live in in that document and how much latitude that gives the court the court which a year ago had 100,000 cases waiting to be here heard an absurd number of cases waiting to be heard needs to say no to far more cases needs to understand that the 1950 drafting of this allows very little latitude for the court that there are many issues that the court is currently engaging with which is outside the purview of the original Convention on Human Rights a classic example of that is prisoners voting the point is not that the question of prisoners voting cannot be resolved legally or philosophically the point is that the question of prisoners voting cannot be resolved on the basis of the European Convention of Human Rights there is nothing within the European Convention of Human Rights which gives sufficient detail or potency to allow a judge purely on the basis of the Nostrum of a democratic society to derive from that very vague and abstract principle the conclusions that should have a vote that could be done but not by the European Court it is something that could be done by a British Parliament's and it's something that could be done by a British Court because it requires a much deeper background of legislation it requires in our case the corpus of the common law it would require in Spain the corpus of their own continental legal system it requires far more than the very brief statements in the European Convention on Human Rights to reach that kind of conclusion this is not to say the European Convention on Human Rights produces far from it the European Convention on Human Rights and its fundamental principles is an incredibly useful dynamic document it is unambiguous and clear on questions for example of torture as it should be and it makes every sense for the European Convention on Human Rights and for the European Court to rule on the protection of fundamental political rights of the sort contained in that document it is not that torture genocide arbitrary arrests arbitrary imprisonment and somehow the only issues that matter there are many other issues of human rights matter but those are the only issues covered in that convention they are the only issues on which this Court should be ruling which is why the Brighton declaration brought together by this government as the president of the European Council the statements of the Century of State the statement to the Lord Chancellor are correct what we require is a fundamental reform of the European Court what we require is to radically reduce the number of cases to clarify the legal and philosophical basis of this court to determine what cases they should be ruling on and what they should not and the reason why all these nations which the Honourable member for data has so eloquently raised of subsidiarity matter is not as a matter of moral legal or our core principle but a matter of the ingredients of the Convention on Human Rights these things are subsidiary because they are not covered in that document and rather than losing confidence in the notion of rights rather than losing confidence in the convention which we were proud to create which a conservative member of parliament in a conservative Lord judge that created the giving way it's giving a very eloquent defense but it would seem to me that the logic of his position is that we shouldn't have a European Convention of Human Rights or court we shall have a world convention is that his position very telling intervention the answer is that we have and ought to respect and sign and uphold the United Nations declaration on human rights it exists we are signatories to it yes we are signatories to it as the Honourable member for Beckenham points out we are signatories to the UN declaration on human rights we were the first signatories to the UN declaration on human rights the UN declaration on human rights in 1947 is the precursor for the European Convention we have signed it we should respect it should we establish a court in order to uphold the information of the UN declaration Jim right that's I think we should be very cautious of doing the UN declaration on human right includes asmath Deputy Speaker is aware it includes many elements which would be difficult for a court to rule on and which are difficult to merit location to the 200 odd members of the United Nations for example the UN Declaration of Human Rights includes a right to paid holiday this is a difficult right to imagine in Chad or Mali or the Congo difficult to imagine what would be involved in somebody in the developing country on a dollar a day asserting their right to a paid holiday it was therefore be difficult to imagine the existence of an International Court but would rule on that kind of information nevertheless in certain set circumstances indeed we should respect the UN declaration and international courts a classic example of this is of course the International Criminal Court another example of this would be the International Tribunal on crimes in Yugoslavia in all these cases with the ICTY and the ICC Britain is a signatory and upholds the rulings of that court those rulings of course deal with crimes against humanity and this is an important point to go back to the beginning of the argument we sign up to these things because we accept that crimes against humanity are crimes against humanity committed anywhere by anyone in any circumstance and the sovereignty of an individual Parliament or an individual country does not Trump the individuals rights to be exempt not even the sovereignty of this comet not even this Parliament ought to be allowed to commit to put most extreme situation crimes against humanity these things we sign up an international level and we constrain the power of our Parliament as we should in those specific cases in the other case there's the moral legal and philosophical argument for better conducted in a domestic context available and secondly thank you mr. Deputy Speaker and I thank my honourable friend is it not the case that the International Criminal Court and the International Criminal Tribunal for the former Republic of Yugoslavia only try crimes against humanity and actually crime Genesis Crichton for crimes of genocide if there is no way that a national jurisdiction will deal with that problem only then does it go to the International Criminal Court or ICTY this is a very fundamental principle the our modern section is absolutely correct to raise we have of course within the international system an important section of state sovereignty the only argument that's being made today is that state sovereignty is not absolute it doesn't Trump everything else but again to return to the the language that the Honorable men thought these sums that doesn't like up to a certain threshold state sovereignty obtained there is a point up to which the ability to attempt to resolve it domestically must be given an opportunity but as a certain case at a certain point when the state concerns has failed to deal with crimes against humanity it is then not only legal under the international system but morally correct for an international court to overrule the national government I thank the given way can I just press him a little bit harder on his position on this world Court of Human Rights because it does seem to me that the logic of his position is that the scope of the European Court should be extended as far as it possibly could yeah given that these things are absolute and not relative as he has been saying if I do or is true it's a very very interesting and important question the answer of course is that when they'd max suffice who she said is of course somebody who we should be proud of on this side of the house and Abby Hartley Shawcross who the other side of house is equally proud of brought together this convention the objective was to try to spread it as widely as possible and indeed the British government has had as its policy for over 60 years now an attempt to push it as far as possible which is why the European Convention now extends a very very long way beyond the boundaries of the European Union and takes in countries like Russia this is because we believe the ingredients to the European Convention on Human Rights our basic inviolable and universal dignity anybody who wishes to sign up to the European Convention we would absolutely encourage them to do any country that wishes to join to sign up to those declarations and the wishes to have itself held to those high own exacting standards contained within this document should be welcomed in doing so but if and this is where the Honourable member for Dobell is absolutely if this court is going to survive at all it needs to narrow its focus drastically if it's to have any kind of credibility or legitimacy in the long run it cannot continue contributing to a situation where the British public ends up feeling that human rights are trivial that human rights are an excuse that human rights are a charter for triviality that human rights have the same relationship to real rights as Health and Safety does to real health and safety in other words that it is a factory for lawyers and insurance claims to return to its fundamental principles it needs to remember what it's there to do and it's on this mr. Deputy Speaker that I really will conclude the European Convention on Human Rights isn't something that we should set aside as a party by suggesting that human rights don't exist human rights do exist and all of us are very proud of living in a society in which our right have been protected in different forms since Magna Carta we didn't use the word human rights really until the French began to popularize the word in the late 18th century until then it was really a specialist word that nobody in this country would have used and indeed it's not until after the Second World War that anyone in this country really started using the word Human Rights but the basic notion of the Rights of Man is something that we've had in this country for 800 years the basic notion is that the human is dignified and inviolable certain things may not be done for that individual that anyone anywhere who's treated in that fashion is wrong that their possession of that right is not relative to the costs or benefits of upholding it in any particular case the European Convention drafted by ourselves enshrined those notions of basic decency of equality of humanity and of invulnerability the problem with it is not the sovereignty of Parliament the problem is not that rights don't exist the problem is not that it's politically too complicated the problem is that we have allowed it to stray from its fundamental job it was given a very narrow task and a very narrow focus which was broadly speaking to deal with crimes against humanity we should therefore join the Honourable member from Dover very very strongly in demanding that the caseload of the European Court is radically reduced the principles of subsidiarity are radically increased and the European Court ceases to get involved in situations which is neither in principle nor in ethics nor in law competent to handle thank you very much Lee Jacob Lee smoke Thank You mr. Deputy Speaker it is an enormous pleasure to Paolo my honorable friend the member for Penrith in the border I think that is one of the most instructive and thoughtful speeches that it's been my pleasure to listen to in this chamber that is I'm afraid to share preamble think there's a good deal of it with which I disagree but I mean very genuinely that it was a fantastic exposition of a defence of human rights to the extent that we have them I think there are difficulties with it as as of you as we discussed in various interventions the question of absolutes is very difficult in a political context which law ends up being in terms of moral absolutes I have no difficulty wearing a Catholic hat to accept them that I believe there are very clear moral absolutes that are established by the church but the state is something very different from that and has pressures on it that mean that the moral absolutes have to be dealt with in the context of the time the obvious example is the definition of a just war and we know that that is definition brought forward by Thomas Aquinas that it sets down the three conditions for a just war to overcome how states can deal with a problem that threatens their own against a Christian teaching which is that you should turn the other cheek so that we find that a moral religious absolute is simply impractical in terms of the secular behavior that states government nations require and then when we look at individual bills of rights or lists of human rights they are not moral absolutes they are a question of dealing with political problems that exist at the time at which they are drawn up my honourable friend gave a wonderful example of which I was unaware of the United Nations Human Rights Convention that maintains the right for pay Paulo day it is very hard to believe that the right to paid holiday is an absolute moral right it is something that comes about because of political pressures at the time because of negotiations between the drafters and those sorts of things that lead to the political decision making process to look at the bill that we have in front of us you see that some of the rights that are being insisted upon in the British Bill of Rights relate to immediate and specific problems that we face there is a part on voters rights for prisoners there is a part on the right to self-defense if your property is attacked these are at the forefront of political debate at the moment and so good document now it is it is very hard to argue that the British Bill of Rights we have in front of us is some eternal moral document that will stand for a thousand years the American Bill of Rights again deals with specific problems that they thought they had at the time at which they were drawing up at the Constitution there very interestingly in the Constitution itself rather than in the first ten amendments is the part on how an acts of attainder are limited they may not relate to blood and they may not affect the next generation and act of attainder was something that was an immediate political issue when the American Constitution was being drawn up which is of no relevance to so I would dispute the point that Bills of Rights that human rights legislation is dealing with moral absolutes I would argue that instead they are dealing with political problems and I mentioned the example a wonderful example from our own bill of rights of the need to maintain our right to bear arms to maintain a Protestant militia again it comes in immediately after you have had a Catholic King and a fear that he will use arms to enforce Catholicism on the country and you need a prostitute militia to defend you against that wonderful and antique though that is it is not an eternal everlasting moral principle indeed I don't think eternal everlasting moral principles very often go very well with the day to day practice of government and legislation and therefore to go back to the four points that my honourable friend made the first point is the overwhelmingly important one it is the one of legitimacy of that political power that is making these decisions that may then be altered by a subsequent political power that the next two points the issue of triviality and inconvenience I think where arguments set up to be knocked down they're clearly wrongheaded that it is absurd to say that some aspect of lawyers aren't important that somebody shouldn't have the right to bring a case of it and equally that if something is inconvenient governments can just override it would lead us with no rule of law at all so it's really the first point in the last point that are essential its against this fourth view as I would see it is there this essential morality that we can bring into our legislative system against whether it is in fact a matter of political legitimacy and I would go from the political legitimacy and it's very interesting how well our constitutional settlement has served us my own boyfriend for Penrith and the border and my honourable friend for devran deal have both referred to the Magna Carta and have said that we have had eight hundred years of these rights well actually the Magna Carta is a confirmation of Rights that it was thought that we already had habeas corpus when that is brought in in 1685 is a confirmation of a right that it is thought that we already had the bill of rights itself is about confirming rights and stopping abuses of those rights that have been done previously and the approach to this is using the development of powers within this country the Baron's in 1215 Parliament in the 1680s to assert these rights against an executive that was abusing them and we come to the position of parliament in this a great deal is made of parliamentary sovereignty and I am indeed a great defender of parliamentary sovereignty but it is not an end in itself great powerful and noble though these two houses are we are here as the servants of the British people with whom authority and legitimacy lies and that is the great safeguard I have always thought of our rights and of our liberties and that is that at a maximum five year period the British electorate have the final say as to whether or not we are to continue in office or whether somebody else is to be given a chance instead and that seems to me to be at the core of the legitimacy argument that the rights are the rights of the human people the individuals who make up the United Kingdom and they may aspire to international rights and that may be a wonderful idea but it is not one of practical implementation or of politics and they have the right to suspend those rights from time to time when they see that there is a dire emergency I'm a great believer mr. Deputy Speaker in habeas corpus as one of the most important rights that we all have that defends us from arbitrary government but do I think that Pitt the Younger was right to suspend it during the Napoleonic Wars and do I think it was right to lock up fascists during the Second World War yes I do it was correct to suspend a fundamental right when the nation was under fundamental attack and there could be no court outside this country that could conceivably judge whether of course I'll give way necessary to confirm the Honorable members Northey Somerset seems to be in a measure of agreement this argument that there is a right possessor right habeas corpuses to this but under certain extreme threshold circumstances that rights could be suspended appears to be in agreement with the notion that there is such a thing as a right that there is a form of environmental tea but in certain situations it might be set aside my point of difference with my honorable friend is on whether this is an absolute right that you can enshrine or whether it is fundamentally arbitrary because once you have to negotiate the threshold the absolute quality of that right has disappeared so it is not an absolute moral right it is something that is part of our ancient liberties that we are justly proud of and I think it's very important to maintain but it is a Liberty that can under certain circumstances be suspended and then it's a question of whose judgment is legitimate in that suspension and in my view the only possible legitimate Authority for suspending that Liberty has to be that body that represents the democracy that is at issue and it cannot be a foreign body or an overseas democracy that can do that it has to be belonging to the people who are affected by it and so yes I do see in a religious context that there are absolute morals and they may or may not be judged by a higher court at a much later stage in our lives but they are not ones that are easily convertible to a temporal secular society which has to deal with the immediate issues of the day so the ancient liberties that we've got I think are crucial defense of us against an arbitrary government and I think the constitutional settlement that we have in spite of these which the Constitution can be changed has been a great protection of those rights and actually a much greater protection of those rights than all those countries with careful constitutions if you think for example of Guantanamo Bay the US government has managed to say that that is constitutional and if you can find in your detailed Constitution a legitimate way of doing something that is in fact outrageous you are able to do it because you're able to say we're following the letter of the law whereas in our nation we are always following that spirit of our unwritten Constitution that politicians have to live win within and abide because they can't go back to the electorate and say well we're following the letter of the law in doing this outrageous thing in all other circumstances and therefore we can get away with it I think the whole row we've had over tea pens and control orders relates to that because they obey the letter of the law we have introduced something of an incredibly arbitrary nature and unjust nature because it meets the definition of the European Convention on Human Rights as interpreted by our own judgments against something that was actually much fairer which was saying as an act of the British Parliament that if you were a foreigner living in this country who we did not want living in this country you got a leave or you would stay in prison and that seemed to me a perfectly reasonable thing for sovereign Parliament to say the court said that that was not compatible so you come up with something that is compatible but fundamentally unjust and that is the problem you get into when you try and impose absolute rights on a governmental system that needs to work with a degree of flexibility and that we all accept that that flexibility is necessary and it is then just a question of the examples that you need to determine it of course anyway thank you effective together challenge enough analysis which is very moving and convincing is that it puts a very very high degree of trust in the seriousness the historical knowledge the culture of the parliament's itself if Parliament itself ceases to take on its responsibilities with that level of seriousness if it starts to make trivial changes to the Constitution for reasons of political expediency how could the British public be protected against its government I'm very grateful to my little friend I think it's a matter not of trusting ask the politicians but of trusting them the British people who send us here in the first place because if we start playing fast and loose with the British constitution there will be an election and we can be thrown out if we use our powers arbitrarily then we can be thrown out and actually there are pieces of superior law under our Constitution and one of those is the 1911 Parliament Act which specifically protects the life of a parliament against an extension purely by the House of Commons and so there is an inbuilt reservation to ensure that we have to go back to the electorate to get their permission to carry on with what we are doing and that arbitrary governments do find that the British people want to get rid of them governments that extend beyond the powers it's not legitimate for governments to have indeed it was a major issue at the last election it was part of the area where the Conservatives and the Liberal Democrats were most together because we were advocating the ancient liberties of the subject against the Labour Party who was constantly infringing those and putting more and more powers into the hands of the state and the British electorate in their wisdom decided to put in to office to parties who were committed at least when they were in opposition to preserving the freedoms of the British subject and so I think we've seen it's tried and tested and it actually works and I'd make a further point which is that once you start saying that this has this House of Commons this side of these two houses of parliament are not capable of making these decisions and that you must have them over to unelected judges overseas then you undermine the confidence of this house to deal with matters properly you give an incentive to this house not to take its responsibilities as seriously why because if we get it wrong there is somebody else who can clear up the mess so if you leave the responsibility here I think that makes us take more seriously the duties that we have as parliamentarians and the obligation we have to protect our constitutional settlement and to come back to this key issue of legitimacy and I choose the phrase legitimacy deliberately rather than sovereignty because it is about doing what is acceptable to the people to whom it is being done and for that you require a body of people that have a sufficient unity of purpose to accept that what is being done to them has legitimacy even when they themselves are in a minority in opposing it and when we in Britain are in a minority opposing a judgement of the European Court of Human Rights we do not feel that that is a legitimate majority minority for us to be in and that majority that is a overruled us has a proper authority to do it and therefore when our courts come out with a judgement that is not in relation to human rights we may rail against it we may be cross about it but we accept it as legitimate when Parliament passes acts that we as individuals don't like that minorities oppose we accept that Parliament has the legitimacy to do it because we attach ourselves to the whole of the United Kingdom to accept the legitimacy the others will never very much forgiving way this is a very powerful moving speech a lot of it is immensely appealing and convincing there is a problem though which is that we set up this court and we seem to be quite happy with it so long as it was going around telling other countries how to behave with all these problems of a legitimacy all these problems of undermining the sovereignty of other people's Parliament's didn't worry us at all until this court that we created turned around and started telling us I don't disagree with my honorable identity of vulnerable friends at all I think we do take the view the rather foolish when we set up these courts that they will never affect us and say you take the International Criminal Court nobody ever thinks that any senior British politician might be hauled in front of the International Criminal Court now if that ever happens we might suddenly decide that we weren't so keen on the International Criminal Court and I actually admire the judgment of the Americans who have not joined the International Criminal Court because they recognize that if it is justice for one it is justice for all and I think as a strong independent sovereign nation with a history of behaving well going back way before Magna Carta we ought to be able to settle our rules for ourselves and be very cautious of setting up these courts that are essentially Victor's justice because what we were really doing with the European Court of Human Rights was saying we have defeated all these nations of Europe they have had terrible dictatorships before they're not like good old Blighty and let us therefore save them how to behave like gentlemen and give them this court and this convention and then when they started saying to us well now you two must behave like gentlemen and of course ladies in this modern age we didn't like it because we thought it affected and undermined our sovereignty and to slightly split my infinitives now to sit on the fence to a degree I think after the war with very immature democracies it might have been a help to them for a limited period to have some guidance to help them reform and rebuild themselves but I no more think that Germany needs to be guided by a European Court on human rights than the United Kingdom does I know more thing Italy needs to be guided by European Court of Human Rights than England does I do not want to impose a rule of foreign Crossing like little risk challenge of course remember pochamma said is that it isn't primarily Germany or Italy that people are concerned with what people would be concerned with is that by leaving the European Court and dismantling this infrastructure we've created it's real perfect and influence at the moment would seem to be directed towards countries from Russian throughout Eastern Europe will be undermined it's the countries that are still perhaps in the situation which the honourable member described for whom the court exists and for whose sake we would be tempted simply on a basis of Foreign Relations contribution to these countries continue to participate in these organizations mr. Deputy Speaker that was the former mandarin-speaking I'm afraid to say that it's the Foreign Office view of the world that we have to do all these things but undermine our own constitution because it makes it nicer for us when we're dealing with our colleagues overseas and it may influence them a little and all that I would never miss a Deputy Speaker give up one whit of our constitution for a minor diplomatic advantage the proportion of benefit to us for guiding our own Constitution for safeguarding the democracy of the British people against thinking we can influence President Putin by harford powerful quite phenomena multi-cell except of course undermined by the Honourable member statements that made sense after the Second World War exactly for us to here's a limited amount of sovereignty to this organization in order to create exactly the peace and stability in Europe which was so central to the welfare and security of the British nation I glad to say mr. sp I didn't undermine my own argument because the my honourable friend may not be aware that until 1969 Henry the eighth's acting restraint of Appeals was still on the statute book and a ver until 1969 it was treason to take an appeal out of this country to a foreign court say from 1950 to 1969 it was impossible illegal treason for the European Court of Human Rights to rule against the United Kingdom say we have set something up that was very beneficial for people who had emerged out of war without there being a risk of anybody appealing to it so and whether appeal was a bit earlier but that slightly beside the point we were safeguarded by our wisdom in not repealing rather more ancient laws run more ancient laws with which I have a certain sympathy as it happens because I think when we had that confidence to be a nation standing on our own two feet at that point we said we will not have any appeals going outside this country case in point then was the papacy when we felt a weaker nation a nation in decline a nation where the business of politics is managing decline where we cannot look after ourselves then we have to have a foreign court that is the final safeguard and fallback of what we are trying to achieve in this country I simply don't believe that that is the right way to do it or legitimate way to do it I do not see that our membership of the European Convention on Human Rights have sufficient influence on other countries I've causative where again if you say we were to go with the Honourable member for Northeast South sets proposal to leave the European Convention leave European Council what would be the way in which the Honourable member would explain to the other European countries that having created this Court drafted the European Convention on Human Rights trumpeted it helped to impose it on other governments we have suddenly decided that we no longer wish to be a party to it we've created an awful lot of things that we don't necessarily still run the after all created Belgium and we don't acclaim to run Belgium having having having created it I think we have a very good argument to make that our legal system and tradition is fundamentally different from the Continental System and that the common law has built up protections over generations which are different from those in the human rights declaration and indeed it was probably a mistake was able to sign off to that declaration on your way the honorable members of honourable medical consult said no words would be saying to the European people we made a terrible mistake 60 years ago we created this thing we spent a long time with conservative and later government saying the great force of civilization and progress we've said somehow English barristers and judges this court we've celebrated its judgments we used it to put pressure on Eastern Europe and Russia but we've decided this was all a terrible mistake and actually we will leave and we would encourage other countries to lead and the whole european court system can collapse and the consequences for what that means of our commitment to human rights and our attitudes towards Eastern Central Europe and Russia can take it to end courts would that be roughly the inversion of the envelope my honourable friend says we celebrate judgments it's very hard to think of a large number of judgments of the European Court of Human Rights that we've been celebrating I don't remember any jubilee parties for judgments of the European Court of Human Rights and of course I'll give way before I give way the Honourable grant will be aware there are many many judgments that we dispute and dislike or restrict on one of North East Somerset think would agree that we celebrated very very strongly the European Court's rulings on exactly the issue of habeas corpus of which he is so rightly proud we took enormous credit for the fact that European Court introduced elements of habeas corpus a notion of no detention without trial took on cases of torture and transformed the political economy and the human rights of southern Europe and we used this as something which we were immensely proud and as part of our foreign policy and a private contribution to our insecurities are we now moving away from all of that or are we saying times have changed my concern is how the European Court of Human Rights operates in this country just because we leave it doesn't mean other countries can't remain part of it and the key reason that it is so difficult for us is because of this difference between the common law and Napoleonic law and this whole fundamental basis of Rights that in England and Wales you have under the common law the right to do anything that is not specifically prescribed by law that is a very different system from the Continental system where you have the right to do what you are allowed to do and then you need a detailed list of Rights for a European system to set out what you can do whereas here you only lose rights when Parliament for its democratic process has decided that they need to be taken away in the interest of the state and that might be your right to Liberty for committing a crime it might be your right to vote because you've committed a crime and lost your Liberty but those are decisions made under the common law by Parliament it is not a question of having a defined list of Rights of what you can do and then assuming that anything outside that you can't do and I think our system of rights in common with the Americans actually produces a much freer and better system of protecting ancient liberties which I hold very dear than having a system of specific rights which if you come into contact with them may provide you with some judgment rather than being free to do whatever is allowed and yes of course there are elements of the convention that I am all in favor of I don't want us to pull out of it and then start torturing people but it's worth bearing in mind why the common law did not have torture and how our system developed without torture and the Continental System developed with torture and it all goes back to 1215 when interestingly we get Magna Carta and interestingly they have the fourth Lateran Council and the fourth Lateran Council states that trial by ordeal cannot be supervised by the church and because the church can't supervise it it cannot be the will of God and therefore you can only find somebody guilty in a continental system if you extract a confession hence for very good reasons for moral reasons the fourth Lateran Council gets rid of trial by ordeal and the law of unintended consequences is it leads to torture being routine in the Continental judicial system and here at the same point by charms I could for tune because the Baron's have come up against the king we get the rights of Liberty preserved and we get the continuation of the development of the jury system of a means of getting to truth again dropping the right by trial ordeal because of course at that point pre-reformation time we were still tied up to the doctrines of Rome so you see how our systems have very sharply and when you're coming from a system that has had these issues with torture being an instrumental part of it then yes of course you need to define the rights more carefully because that's not what they've had before they have needed them to be imposed generally working make this my last intervention the Honourable member has spoken very well about a notion that deeply somehow rooted in Magna Carta is a British immunity to any of these temptations the problem however is that we're facing very different kinds of challenges today and very difficult to believe that the kinds of mechanisms which the Honorable members talking about which are primary mechanisms to do with the expression of backbenchers opinions in the House of Commons and election Society any election can have a fundamental effect on an issues such as for example Predator drones howlers for example the Honourable member for North East Somerset deal with the question of predator drone assassinations how would the Honorable members of multi zones that explain how continues British Catholic participation and knowledge of assassination by predator drones have continued to three years without this Parliament touching on it at all and asides in my very junior position as a new member of Poliquin see without me any intention of really touching out in the next two years and in the absence of any code of right and the absence of anything to which one can appeal to protect people how on earth is one going to have protections to citizen mr. Speaker I think that is essentially a matter of politics and the doctrine of the Just War if we are involving ourselves in predator drone strikes do we meet the three criteria of a just war is there sufficient cause are we a legitimate Authority and is there a reasonable prospect of success and it is for the government to make that case and if the government cannot make that case then ultimately Parliament will have to decide but I would certainly not but the safety of the nation in the hands of a bunch of judges overseas that is the worst possible example for the Honourable gentleman my humble friend to use even though I'm actually rather sympathetic to his basic point that using dreads is not something the British would be involved with but the decision for that a decision on our own national security must surely rest with the executive held to account by the legislature because that ultimately is why we are here mr. Deputy Speaker it's why we're here since Parliament was first assembled we are here to bring redress of grievance against the crown and against the ministers of the crown and it is our job when representing our constituents and in the legislation that we vote on and in the questions we put down to redress grievance where the rights the liberties the freedoms of our citizens have been undermined we do not need an overseas Court to do that an indeed to the extent they do do it it reduces our ability to do it for our constituents because they appear to be the legitimate Authority for address of grievance rather than this house so mr. Deputy Speaker I think this bill is a step in the right direction there's not every dot and comm robit that I'll agree with if I'm asked to serve on the committee we have privilege and honor I would like to see it slightly simplified and I would like to see it remove the European Convention altogether indeed I'm not entirely sure I wouldn't like to see the act in restraint of Appeals return to the statute book to apply a slightly higher penalty for appealing outside this Kingdom to foreign courts because it is in essence the legitimacy of our democracy the legitimacy of Parliament the legitimacy of each member here representing our constituents that defends the liberties of the British people because if we fail if we don't defend them if we pass them off to somebody else then the British electorate can get rid of us each and every one of us and put in our place people who will stand up for their liberties

Channel: Lindsaybeg Road

Views: 254,860

Rating: 4.866199 out of 5

Keywords: Jacob Rees-Mogg, Rory Stewart, Human Rights

Id: VO2Ry4j79LU

Length: 94min 37sec (5677 seconds)

Published: Thu Aug 17 2017

Reddit Comments

[u/LordMondando]

Rory for PM.

Solid definition of rights.

[u/[deleted]]

Pleasure to listen to. It really is a shame that the average Brit's knowledge of Human Rights (and everything else) is what they've been told by their tabloid of choice.

[u/[deleted]]

This is what I find so incredible, and yet so frustrating with the Conservative party. The back benchers such as Mogg and Stewart appear to be far superior to the individuals on the front bench running the party.

It speaks to the idea that the best person for the job is one who doesn't want it, and yet in politics you don't get the position unless you push for it. I'd be curious to see a Conservative party with individuals such as these two on the front bench.

[u/[deleted]]

Thorough joy to watch that.

[u/RevisedThoughts]

The respectful tone of the debate, the knowledge displayed and the way parliamentarians hold each other to standards that avoid oversimplification is very instructive and quite cheering for me.

On the other hand, the lack of interest in this debate from the opposition benches, the routine conflation of civil and human rights as well as the assumption that certain institutions for protecting human rights are on trial for overreach rather than impotence are disappointing for me.

I am sure that opposition party parliamentarians are working on and showing interest in these questions in other ways. Both the speakers appeared to hold a rather self-congratulatory opinion of Britain's approach and contributions to human rights (magna carta and parliamentary responsibility did not necessarily protect human rights of subjects of slavery and empire, for example) and the argument was narrowed between a defence of the status quo or a return to a period where human rights had no legal protection against the whims or designs of a simple majority in parliament. Even the argument for the status quo included an insistence on the importance of a reduction of the scope of the ECJ.

I applaud the attempt to identify first principles, though. Leaving the floor to Conservative MPs to define the issue as one of perceived legitimacy of a court vs parliament led to a philosophically satisfying discussion, but it also put the legitimacy of human rights on trial, led to its unchallenged elision with civil liberties or civil rights, and ignored the more important question of how to protect and promote human rights - as each time this was discussed, either their very legitimacy was questioned or the legitimacy of attempting to protect or promote them in any extra-parliamentary manner.

In my opinion parliamentary democracy should partly be legitimated and judged itself for its efficacy in protecting and promoting human rights such as those enshrined in the UN declaration and the ECJ. Accountability in elections is great, but it manifestly does not predictably protect human rights, particularly of those of unpopular minorities. What is to be done about that if not an international court with a specific remit? More parliamentary discussion with backslapping and selective memory about how great parliament is at protecting human rights in difficult circumstances?

But a great debate as far as it went and very thankful to OP for the link.

[u/xanjamii]

I understand that R Stewart is on leadership manoeuvres. Apparently held a dinner for backbencher to rally support for a leadership bid. (Tory whips were so concerned that they gathered all key parliamentary aids and said if this happens again, aids are obliged to grass on their MPs/ministers for disloyalty).

[u/Axmeister]

This is why I come to this subreddit, more of this stuff please.

[u/ZiVViZ]

A lot of this is very reasonable and you can tell his thoughts are fully formed and he's mostly considered the questions beforehand.

I broadly agree with it, but since I don't know the exact specifics of what he's talking about it's hard to refute it with regards to the exact contents of the documents of which he refers.

The main point he is raising is, it's not the fact the ECR can supersede ours, it's more the fact it should only be doing it in times where human rights are being broken, rather than going into things which should be dealt with by local courts.

[u/[deleted]]

Human rights as a concept is weird. It means different things to different countries.