The Liberal Elite Shifts -Two Important Speeches on 'Rights' and Open Borders
It’s harder and harder to be sure that newspapers or the BBC have given the right priority to news items. Some things obviously demand the top slot on any running order, and the front page of every newspaper. But there’s a growing number of days when nobody can agree.
And then there are startling and important developments which, though covered, are to be found at the bottom of inside pages where only the determined reader sees them.
I was struck, last week, by two events which seemed to me to attract less attention than they might have done. One was a very interesting speech by Lord (Jonathan) Sumption, a Judge of our ill-named ‘Supreme Court .It’s not Supreme at all. In fact it’s Unsupreme twice over. It *can’t* overrule Parliament, but, like Parliament, it *can* be over-ruled by the European Court of Justice in Luxembourg This is not the same thing as the Human Rights Court in Strasbourg, though the two are quietly converging (this is relevant to what’s coming).
Lord Sumption (who may have attracted less attention because he was speaking in Kuala Lumpur rather than London) said two things One was that ‘the expansion of the empire of law’ had been needed to fill the gap left by the failure of religion and morals. He said that during the Blair decade, 3,000 new criminal or administrative offences were added to the Statute Book.
‘Restraints on the autonomy and self–interest of men, such as religion, have lost much of their former force, at any rate in the West. The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.’
And then, after rather oddly praising the European *Convention* on Human Rights for what he called its ‘admirable text’, he laid into the European *Court* of Human Rights for its interpretation of that text.
He said it had ‘become the international flagbearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the [European Convention on Human Rights] as what it calls a “living instrument”.’
He paid special attention to the ECHR’s creative interpretation of Article 8 of the convention - the ‘Right’ to private and family life. This had been ‘devised as a protection against the surveillance state by totalitarian governments’. But now, he complained , it had been stretched ‘to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides’.
As he correctly said: ‘None of these extensions are warranted by the express language of the convention, nor in most cases are they necessary implications.’
As the excellent Steve Doughty reported in the Daily Mail, he went further, saying ‘To give the force of law to values for which there is no popular mandate is democratic only in the sense that the old German Democratic Republic was democratic.’ This may even have been unfair to the GDR, which, as we see in the survival of the German ‘Links’ or ‘Left’ party, did actually command some popular support among its population. He said that Strasbourg uses the word democracy merely as a term of approval for its decisions, and quoted George Orwell’s remark that 'if thought corrupts language, language can also corrupt thought'.
Lord Sumption pointed out that new laws made in Strasbourg were 'in practice incapable of being reversed by legislation, short of withdrawing from the convention altogether' . This is a very interesting and important point, which had not directly occurred to me before, and which leads to all kinds of alarming conclusions.
Lord Sumption( who is a historian as well as a lawyer) democracies were ‘rarely destroyed by a sudden external shock or unpopular decisions'. The process was usually more 'mundane and insidious' as they were 'slowly drained of what makes them democratic by a gradual process of internal decay and mounting indifference’.
Right enough. Kierkegaard’s point that revolutions which leave the buildings standing, but destroy the spirit, laws and ideas of a civilisation, are the most successful, occurs to me when I read these words. As I’ve so often pointed out here, the only written protections worth having are terse unambiguous limits on state power, such as we used to have, but are been allowing to fall into disrepair, or actually destroying . For example :
Habeas Corpus, the answerability of the sovereign to the law, jury trial, the right to silence, the rule against double jeopardy, the prohibition of torture, the freedom to bear and keep arms, the inviolability of property, the prohibition of search or arrest without proper warrant, the enforcement of open trials, *these* are things worth having. By comparison, the ECHR is a counterfeit currency of fake liberty. And worse, it is a licence for judicial interference.
Interestingly, the one we don’t have – the US First Amendment safeguarding freedom of speech and the Press – is so unambiguous that neither Congress nor the Supreme Court can overcome it. But we cannot have it in the American form (‘Congress shall make no law…’) as long as we also have a sovereign Parliament which cannot bind its successors. Some other form needs to be found.
‘Human Rights’ not only don’t protect us. As Lord Sumption nearly says, they can be used by Judges to reduce our freedoms.
Now, I have said many of the same things myself. I say frequently that the death of Christianity has weakened our morals, made us more disorderly and in turn made us far too ready to accept a Strong State. I have many times attacked the Human Rights court as Lord Sumption has done, though I would go one important step further - I think Britain was extremely incautious to help give birth to the original Charter, whose airy, flowery sentiments lend themselves to so-called ‘broad interpretation’ . In fact I think Lord Sumption’s ‘Charter, good – Court, bad’ position is incoherent. A Charter that couldn’t be litigated wouldn’t be important or worth remembering. And if it can be litigated, it is by its nature a tool of judicial meddlers.
But isn’t it pretty startling that this very senior figure in our elite is about 80% in agreement with the Hated Peter Hitchens, that foaming reactionary bigot?
And then how about this? Chris Patten is not exactly one of my allies - though I find his splenetic performances before Parliamentary committees increasingly enjoyable as theatre. He’s got something of the 18th century about him.
He has, anyway, been for years a darling of the liberal media.
But for how long? He’s been speaking out abroad, too – in Paris. Europe’s national leaders, he said in a speech delivered in our lovely embassy in the City of Light, are more and more powerless to control immigration.
He didn’t say they had brought this on themselves by abolishing so many frontiers, and failing to control the ones that remain, but they have.
‘Today, with porous borders, the amount that politicians and political leaders can actually do on their own is very limited.’
Alluding to the ‘dark side of globalisation’ (is there a bright side?), which he blamed for the spread of organised crime, drugs and epidemic disease, he said national politicians were increasingly reluctant to tell the truth about just how impotent they are.
'I think it's astonishing that politicians are so reluctant to say we're not any more facing a series of challenges which are manageable within our own space…
'It's proved extremely difficult for political leaders to tell people what they may not want to hear and get elected. And the general consequence has been that political leaders only tell people a bit of what they don't want to hear, which doesn't entirely prevent the growth of populism and parties on the extreme but can just about secure their election.’
Again, this is very close to what I’ve been saying for years, but emerging from the mouth of a major elite figure. Shouldn’t these speeches have attracted more attention and more discussion?