British Politicians, the small print and the EU

There is no point in me writing a post on this myself, Mary Riddell has done a fine job of that already.

Yeah, yeah, yeah, rhubarb, rhubarb, order in the House, 'physically ill' and the rest of it. All I can say to the Commons over this votes for prisoners dispute is: just shut up and pull the trigger and get out of the Council of Europe. Or admit you are too timid to pull the trigger, so shut up anyway and submit in the manner that suits men who are cowards.

This noise about how Britain may now stand against to the council's European Court of Human Rights (ECHR) is at best naive and in most cases (yes, you, David Cameron) is synthetic. What Cameron has done on this one is pretend this is the crucial line he won't cross. Meanwhile, very much more quietly and apparently without a moment of squeamishness (odd that, how selective the prime minister's stomach is on parliamentary sovereignty), his Government hands over more and more power to the European Union.

What he has done by stirring up this prisoners' votes business is simply give the euro-anxious Tories a different kind of 'European' bone on which to chew. Yet this issue is not the meat. The ECHR and its decisions are not the things most endangering Britain's sovereignty now.

Still, if MPs are really so determined to stop this so-called 'encroachment' by Strasbourg, maybe a technical note first. Britain freely (and foolishly) agreed long ago to give the court at Strasbourg all the powers that the ECHR has since been using. This so-called 'court' at has never invaded Britain -- the supine British opened the gates to all these European 'justices' and their powers to decide Britain's laws.

The angry cries, even among my colleagues, that there has been 'remorseless undermining' of Britain's parliament and courts implies that the ECHR has been tunnelling away under the stone walls of Britain, rather in the manner of medieval seige warfare. It hasn't. The ECHR has done only and exactly what decades of euro-supine British politicians have allowed it to do. The drawbridge has been down all along, with 'We are all Europeans now' written on cloth-of-gold and slung from the battlements.

All parliament has to do if it really does want to stop the powers of this 'court' is just vote to pull out of the Council of Europe, ECHR and all. Then this absurdity of votes for prisoners, and every other ECHR so-called 'human rights' absurdity, goes away; or at least -- and this is what Cameron is hiding in this debate -- until Brussels reminds the United Kingdom that by signing up to Lisbon Treaty and the rest, powers across the Channel can go on imposing these 'human rights' on Britain whether the UK tries to derogate from the ECHR decisions or leaves the Council of Europe altogether.

Cameron, being so very busy having a public relations-designed 'physcal illness' over the issue, won't admit that the problem with exactly this kind of control by foreign powers over Britain's legislation will continue as long as Britain stays in the EU: even if Britain now refuses votes for prisoners -- and it won't; in the end, some man caught with 10,000 child porn images on his laptop will have the liberty to cancel out your vote -- ultimately the EU will have ways of getting the same decision reached in the European Court of Justice (the EU 'court,' this one in Luxembourg with the power to enforce EU law in member states). All that will be necessary is for some other ex-con lowlife to bring another case, this time in Luxembourg not Strasbourg.

The Lisbon Treaty, among many other poisonous things, gave the EU 'legal personality' for the first time. That means it can sign international agreements, not as an agent for a group of 27 sovereign states, but as a state in its own right. And as this new country called Europe, it is going to join the Council of Europe. It will be a member just as the United Kingdom is now.

What that means is that Britain, even if it pulls out of the Council of Europe, will still be bound to the damned thing as a part of the EU: remember, Lisbon made us all 'citizens of the EU' now. If you are a native of England, Scotland Wales or Ireland, your nationality is now 'European' whether you want it or not. The treaty says so, and the treaty, thanks to the refusal by Cameron and William Hague to fight it, is law.

Treaties and other international agreements now signed by the EU will be directly binding on the UK and have primacy over all UK laws and the British constitution. And, no, Britain does not have a veto over most of the things the EU might sign treaties on.

Slightly delicious note: I gather the EU's signing for the membership has been held up because the EU is demanding that decisions of the ECHR cannot over-rule the decisions of the ECJ. In other words, Brussels is demanding that its own court have supremacy over the ECHR, something Britain has surrendered for its own Supreme Court.

So there could be turf conflicts between the euro-courts. As Open Europe notes in its briefing this week on the votes for prisoners dispute, the EU has its own catalogue of justiciable rights -- '' 'the so-called Charter of Fundamental Rights, enshrined in the Lisbon Treaty. The Charter allows citizens to contest rights set down in EU law at the European Court of Justice, and, in future, possibly also the ECHR (when the EU accedes to it).'

This will make it 'increasingly difficult for the UK to negotiate a carve-out from European human rights legislation.'

As for the detail of this particular case of prisoners' votes, 'Withdrawal from the ECHR would allow the UK to ignore ECHR rulings on prisoners votes when it come to general elections. However, as voting rights in European Parliament and local elections are covered by EU law as well as national law, their application in the UK could in future be challenged at the ECHR or the ECJ.'

Oh, and as for the Cameron fudge about limiting the vote to prisoners serving four years or less, the ECHR has already struck down that notion in a similar case, Scoppola v Italy. It decided that the prisoner's rights were violated because Italian law barred him from voting on the basis of his sentence. So they will knock down Cameron's four years, too, and I'd suspect he knows it.

Which is why the noise in the Commons over this is just noise. Either parliament is sovereign or it's not, and until the MPs vote to take Britain out of the EU, it's not: the 'legal personality' called the 'European Union' is sovereign.

So the MPs might as well go home; or go around to the 'Scrubs for a bit of canvassing.

...And back to me. Peter Oborne has this funny statement on his blog

But it just isn’t going to happen. Even if he launched on this kamikaze mission, he wouldn’t complete it. Dominic Grieve, the Attorney General, has already advised Downing Street that banning votes for prisoners is illegal. I guess he would resign, along with Ken Clarke. I am told that most of the supreme court judges would follow Clarke out of the door, launching Britain into a full-scale constitutional crisis. Not only that, Nick Clegg, who has been strangely silent on all this, would walk out of the Coalition.

Who cares if Dominic Grieve, Ken Clarke and the Supreme Court judges walk out? They are doing so on their principles not ours and they are supposed to represent us and our parliament. It is not a constitutional crisis when the people that walk out have no support form the electorate anyway. If they had the support of voters and truly trumpeted the vox populi, the story would be different. Hence I cannot see where this "constitutional crisis" would be coming from, simply because no one would care and a few would cheer.