Perhaps it's only the practice of
so-called advanced western nations, to continually tinker with their legal
statutes to such a degree that almost inevitably they end up with a legal
system that is not only completely unfit for purpose, but ultimately acts as a
direct impediment to the equitable dispensation of justice for all of its
citizens. If, as they old saying goes, "the law is an Ass", in that
it can be asinine, obstinate, stupid and often unjustified, then that it
because it has been made that way, or at least interpreted in that way, by
those individuals who practice it, the judges and lawyers who are employed
within our various judicial systems.
The law, Common or otherwise, is
thought to have been founded on the basis of plain common sense, traditional
practice, historical precedent and cultural norms, thereby offering the people
who were governed by such laws the security of knowing that a full set of often
rigid legal rules were in place when it came to issues like criminal behaviour,
property rights, personal ownership and a wider adherence to a range of
mutually accepted social customs. The Magna Carta of 1215 was said to have
consolidated and confirmed the most important aspects of England's historic Common
Laws within its text; and in a similar way was subsequently reported to have
been used as the legal basis for many of the legal statutes that have followed
on from its sealing by King John at Runnymede.
Even though Magna Carta is
commonly regarded either as part of an uncodified constitution, or simply as a
legal charter guaranteeing the rights of the nobility from the unreasonable
demands of a monarch, most legal experts now agree that the charter itself has
little or no judicial relevance, as most of its terms have subsequently been
repealed, after having been overtaken by later modern precedents. In addition
to Magna Carta, a number of other statutes were introduced to protect the
rights of individual citizens, including the Petition of Right, the Habeas
Corpus Act 1679, as well as the Parliament Acts of 1911 and 1949. These in
their turn have in whole, or in part, been replaced by the terms of the
European Human Rights Act, which was initially drawn up following the
humanitarian outrages of the Second World War; and that the Labour government
of Tony Blair finally incorporated into British law in 1998.
Clearly, whilst no right-thinking
person could reasonably object to having a common set of rules that protect the
life and liberty of individual citizens, regardless of where they happen to
live within continental Europe, as with any legal system driven almost entirely
by legal precedent, opinion or interpretation, especially one incorporating 28
disparate states and 500 million individual people, there are going to be
problems. What might be traditional, or customary in one European country, may
not be so in another, given that most modern European states have historically
developed their legal systems from a combination of Roman Law and their own unique
civil legislation, while for their part England and Wales have traditionally
used English Common Law as a means of regulating their societies.
According to most UK
commentators, the principal reason behind Britain's adoption into law of the
European Human Rights Act, was not that its citizens were without such legal
protections, but rather that the decision was intended to speed up and offer
greater accessibility to those claimants who wished to pursue justice under the
terms of the relevant human rights legislation. Where previously claimants had
been forced to take their cases to the European Court in Strasbourg, a lengthy
and expensive route, it was intended that such claimants could pursue their
claims through the English Judicial System, which was now required to be
mindful of rulings previously made by the European Courts of Justice in
Strasbourg. That is NOT to say and neither was it initially intended that
British courts would automatically defer to the ECJ when it came to handing
down justice, although that is exactly what has happened over time, British
courts and judges have either deliberately or mistakenly handed primacy of
Human Rights legislation to a foreign court.
Unfortunately, as is often
thought to be the case in a number of foreign countries, possibly most notably
in the United States, the previously impartial judicial systems have allowed
themselves to become increasingly politicised by members of various ruling
Executives, often at the direct behest of un-elected special advisers, focus
groups and special interest minorities. Where most citizens of a nation would
happily accept that "the law" that they live by, should be a living,
breathing thing, in that it's accessible, understandable, equitable and
adaptive, all too often nowadays political appointees are being used to both
interpret and manipulate the laws that we live by, not for the betterment of
society as a whole, but rather in pursuit of their own, or someone else'
particular ideology, be that legal, social, economic or political.
One only has to look at some of
the absolutely bizarre and outrageous judgements that have been handed down by
British judges in court cases involving the European Convention on Human
Rights. Where once the "rights" of the "victim" would have
taken precedent over any perceived rights of the perpetrator, which common
sense would dictate were abandoned at the outset of their own criminal actions,
now it seems that the perpetrators "rights" to a family life, to
legal protection under the law, are not only paramount, but sometimes outweigh
the rights of their victims, the wholly innocent people who had committed no
wrongdoing, but who have suffered as the result of someone else's?
Common sense would suggest that
someone who enters our country illegally has through their own actions put
themselves outside of the law, so just why should they enjoy the protections of
our legal system, when they are content to ignore it in the first place? If the
basic argument that "ignorance of the law is no defence" holds true,
then how does someone having unlawful sexual relations with an underage girl
escape a custodial sentence? Where is the common sense in allowing a violent
foreign offender to remain in our country, even though he has no real right to
do so, other than the most spurious excuse brought under the terms of the HRA?
Just how does any migrant make a legitimate claim for asylum in the UK, when
often they have previously travelled through any number of "safe"
western countries in order to get here?
Yet again it seems that Prime
Minister David Cameron will attempt to renege on the electoral promises that he
made to the British people, this time on his pledge to replace the Human Rights
Act with a much more reasonable and manageable British Bill of Rights, although
given that such civil rights already existed prior to 1998, it rather begs the
question, is such a replacement really necessary at all? Clearly alarmed by the
public outrage expressed by a handful of human right's activists, celebrities,
human right's lawyers and a few backbench MP's, it seems that Mr Cameron would
rather our judicial system remain an international mockery than actually take the politically uncomfortable decision
necessary to redress the balance in our courts, by actually returning legal
primacy from Strasbourg to Britain itself.
Britain has an extensive and
extremely proud heritage when it comes to making laws that people can live by,
both at home and on the international stage. It's worth remembering that
Britain was one of the principal powers behind the creation of the charter of
European Human Rights and is a signatory to virtually all of the international
treaties that guarantee people protection under the law. British laws have been
the basis for all of the world's great democracies, including America, India,
Canada, Australia and all of the Commonwealth nations that continue to exist
today, so for anyone to suggest, let alone a member of the United Nations, that
Britain risks becoming a "Nazi" state, simply because it might choose
to regain primacy over its own Human Rights legislation, is not only absurd,
but is downright insulting.
Native Britons were being
accorded their freedoms and rights long before many of today's international
states even existed and certainly long before the United Nations and the
European Union were even founded, so I'm not sure we need to be taking lessons
from anyone about how to protect the individual human rights of our citizens,
not even the European Courts of Justice in Strasbourg!
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