So much for English Common Law ... as usual the EU is not mentioned once

The divergence of Britain from the Continent can be traced to Bonaparte's greatest victory 200 years ago. In Book III of "War and Peace" that Tolstoy memorably describes the Battle of Austerlitz — "the battle of the three emperors." This was the greatest victory of Napoleon Bonaparte's career. At the time, it seemed far more important than his navy's defeat at Trafalgar two months before. By routing the combined armies of Austria and Russia, Austerlitz enabled Napoleon literally to redraw the map of Europe, conjuring up a new Confederation of the Rhine from the Baltic to the Alps.

Moreover, by obliging the Austrian Emperor Francis to renounce the title of Holy Roman Emperor, Napoleon snuffed out an institution that had been at the heart of Europe for more than a millennium.

Napoleon's idea of Europe was double-edged. On the one hand, he overthrew decadent dynasties such as the Bourbons of Naples and established what was to become the model for Continental legal systems, the Code Napoléon. Later, in exile, he claimed that he had "wished to found a European system, a European code of laws, a European judiciary" so that "there would be one people in Europe." Yet, at the same time, Napoleonic Europe was without question an authoritarian empire.

What finally killed Napoleon's Europe was the fatal combination of the English Channel and the Russian winter. Nevertheless, it proved impossible to restore the old pre-Napoleonic Europe.

Napoleon fell; Bonapartism lived on, with the civil code and economic dirigisme as perhaps its most enduring legacies. Now it is back in the UK backed and imposed by the EU as usual (that is one of the 'minor' consequences, one of the footnotes, of signing the Lisbon Treaty), and as usual not a word is being said about this in the newspaper. Not a single 'EU' is mentioned in relation to uprooting of English Common Law. What to say? It is again one of those where you are completely at loss for words. Think back at the greatest men of our history and ponder what they might have replied on stumbling upon this revelation; that the corner stone of England is being chucked out just like that. It should be said that I strongly disagree with Mr. Berlins who wrote this post on the issue over at the Guardian. I will echo instead what Fausty said on the subject.

An illustration of the difference between Common Law and the Code can be seen in the understanding of "Rights." In the Anglosphere, there are a core set that pre-date the existence of the civil power and cannot be diminished by it (Jefferson's "Life, Libery and the Pursuit of Happiness.") The Code acknowledges no rights save those spelled out in the Code itself. Rights are thus a creature of the Code and therefore malleable by whoever has the power to amend the Code.

In Common Law you are assumed innocent until the state proves you guilty. In the Code you are presumed guilty until you have proven otherwise.

Ask yourself this; what is more important £6 million or a man's freedom? They are of course claiming that this is done to save money, their primary argument - to have the audacity to even suggest that money is an issue it outrageous. It is the responsibility of the state to prove that one or more of its subjects have acted outsides the confines of the law and failing to do so the subjects must be set free. Furthermore if the confines of the law are not adequate then the laws are changed for better implementation by elected representatives of the people, not the practise of law. You know of course where this will lead, more cases will use the Code under the guise of "cost savings" and hey presto our freedoms are set in stone - that in itself is a contradiction, an oxymoron of colossal importance. Freedom is a liberty, we are born free, if you write down that it is a freedom to be born free then it is not a freedom anymore. You have defined what the concept means, you are introducing guidelines and rules for the implementation of the word and then you make it into a law and a law is a rule which prevents freedom. The more laws the less justice, and the primary purpose of the Code is to ensnare and trap our freedom.

The UK Supreme Court, 12th of October the mistake begins

David Blunket has written this over at the Times where he examines the new Supreme Court UK. We have covered this issue extensively and will be at the opening of this grand mistake at its opening on the 12th of October, providing pictures and commentary. Consider this very important paragraph as posted by Mr. Blunket

"The problem is that we do not have, and with the new constitutional affairs legislation still will not have, clarity about how, within that separation, we ensure that the judges do their bit to stay independent of political interference but that parliament has the final say on the laws of the land. The sooner we get this sorted, the better. That means ensuring that judges have the power to intervene and to rule against ministers when they exceed the power granted to them by the elected parliament but, on the other hand, that they do not have the power to decide that parliament is wrong or that somehow it should change its mind."

It seems that "independent" in this context is more or less synonymous with unaccountable. It certainly does not mean that the new Court will not have an activist agenda, at odds with that of the elected Government of the day, and remote from the values and concerns of the majority of the British public.

Judicial activism is not a new phenomenon in the UK. The principle of the supremacy of EC over domestic law, and more recently the Human Rights Act, have allowed foreign (ECJ/ECHR) and UK courts effectively to overrule Acts of Parliament. The creation of the new Supreme Court will only accelerate this trend.

The new Court could not have come into being at a worse time. The power and prestige of Parliament are at a very low ebb. In the wake of the expenses scandal, it is difficult to see the Commons reasserting itself against the executive and the party whips, let alone mounting an effective challenge to a confident and self-aggrandizing new Supreme Court. I despair of Parliamentary democracy in this country.

What is the solution then? Well the Law Lords cost the tax payer £2,000,000 a year which is a highly respectable figure if you were to compare it to the working cost of say the American Supreme Court or the Palais the Justice in France. Basically that is to say that the annual cost of the highest court in the UK is a hell of a lot less than most countries, if any comparable to the size and geopolitical status of the UK. Well, the new Supreme Court UK will have an annual budget of £60,000,000 (sixty million pounds compared to two million for the Law Lords).

This is a supremely stupid way of fixing something that does not need mending. The Law Lords worked perfectly fine and were tremendously respected throughout the world particularly because they functioned in such a good way despite they being part of the legislative process (and I say 'despite' not in a derogatory manner since over the past century them being in the House of Lords seems to have had little effect on the legislation, if anything it provided the best legal advice the House could ever have wished for). As with everything with this government they seek to destroy pretty much everything that once used to define Great Britain, and they are doing a spectacularly good job of it at that. The only advise I can offer to the income government is basically repeal the Constitutional Reform Act 2005. You will have saved in the money building the Supreme Court UK, within two years - the building and everything surrounding it has to date added £66,000,000 to the tax payers bill.

And again before you leave this blog let me draw your sincere attention to the emblem posted at the beginning of this entry. Notice the distinct lack of the St. Edwards Crown instituted in 1954 to be part of all governmental emblems. It seems that this government has taken it upon itself to abolish Royal Prerogative as well. I will post my mails regarding this issue with the Ministry of Justice once everything has been finalised. Stay tuned.

The complexities of Justice: In reply to EU Nosemonkey and his claque

I have been putting of this reply for a while because it is a fairly complex issue to discuss for myself since my academic expertise lies not in jurisprudence but another field of academia. Challenging someone who ostensibly has a degree in law and has worked as a parliamentary researcher in both Westminster and Brussels will at best be difficult at worst disastrous, hopefully the reader understands my apprehension about writing this post. It is like the Danish Army in 1940, taking a stand against the Wehrmacht. Hopefully I will not suffer the same fate as the Danes (they surrendered after 30 minutes). Let it be understood that we harbour no ills against Mr. Nosemonkey - he is a Eurocrat I am not. We respectfully disagree.

Here we go...

This is the reply (in italics) EU Nosemonkey gave to my post titled 'Remember The Awe', where my response in normal font.

The only fundamental of the British constitutional system is that no parliament can bind another. Magna Carta predates parliament - but that does not make it exempt from the rule.

This claim in must take issue with. Magna Carta was signed (not really, King John was illiterate and could not write hence only his seal was on the Magna Cart no his signature) in 1215.

1215
King John agreed to Magna Carta which stated the right of the barons to consult with and advise the king in his Great Council

1236
Earliest use of the term Parliament, referring to the Great Council

Magna Carta created parliament, it was not referred to by name until 1236 agreed, but that does mean the concept of parliament itself was not created in 1215. Parliament is after all a legislative body and since that previously was accorded to the king, but now was done in conjunction with the barons, the concept was born out of Magna Carta and cannot have predated it since it created it.

On the habeas corpus side of things - you have heard of feudalism, right? Which carried on for several centuries after Magna Carta was signed, and which was basically indentured slavery. Habeas corpus has also been suspended by parliament several times during periods of war (that whole "no one parliament can bind another" thing again) - and is also one of the "fundametal rights" of the European Charter of Fundamental Rights, which would - if the Lisbon Treaty is passed - for the first time *force* the British state to hold habeas corpus (among other things) sacrosanct.

Well that makes absolutely no sense at with regards to the European Charter of Fundamental Rights. Even so before coming to terms with that claim, The Conservatives are proposing to scrap the Human Rights Act 2000 and replace it with a British Bill of Rights which surely then must contradict the need for a European Charter of Fundamental Rights. Never mind the rights actually, the Lisbon Treaty creates so many undemocratic features anyway, but that is for another time. But just by the by here are some parts of the Corpus Juris (I am sure you have heard of it), you will notice that having a European Charter of Fundamental Rights helps little when the creator of it is the one we need protection from.

CORPUS JURIS PROSECUTORIAL POWERS

1) "Powers of investigation of the European Public Prosecutor (EPP) "will include g) To make requests for a person's remand in custody. . .for a period of up to 6 months, renewable for 3 months, where there are reasonable grounds to suspect that the accused has committed one of the offences defined above, or good reasons for believing it necessary to stop him committing such an offence. . ." (Page 90, Article 20). Habeas Corpus sacrosanct, are you really sure about that?

This means that the EPP can incarcerate someone for months without charge merely because he thinks they might have committed an offence or might commit an offence. It appears that there is no limit to the number of 3-month extensions. This practise was outlawed in Britain more than 300 years ago as part of the Habeus Corpus Act (1689) which is now incorporated into Britain's Bail Acts.

2) "In the case of partial or total acquittal appeal is also open to the EPP as a prosecuting party" (Page 120 article 27.2 )

The meaning of this is plain - the accused can be tried twice for the same offence thus creating the state of "double jeopardy" which has been banned in Britain for centuries.

3) "Section 6 of the EC Human Rights constitutes an excellent model for the rights which should be granted to the accused;. . .however case law has not yet decided whether being held in custody makes a person an 'accused ' person. . ." (Page 126).

In this Kafkaesque mode of thinking, anybody can be locked up without becoming an accused person and, since the person has not been accused, he or she will have none of the protections afforded by the human rights legislation or the protections already provided by our Common Law.

Thanks to David Rowlands for the above.

By the by, your "know this" section in your sidebar is based on a fundamental misunderstanding of the nature of British *and* European law. (Something I assume you've picked up from the Devil's Kitchen? DK and I have argued about this in pubs on occasion - he's still wrong.)

No not at all it is entirely, 100%, of my own accord. I am not a frequent visitor of the Devil's Kitchen having only learned about the site a couple of weeks ago (prior to the post in question being written).

First of all, the "Napoleonic" system that you claim to be so incompatible with the "British" is the same as that used in, erm... Scotland. We've had two different legal systems operating side-by-side for centuries with no problems.

Henceforth why we call it "English Common Law." Having desperately search my blog page several times I cannot find anywhere, precisely, that I claim that they are incompatible. I take offence at the way the Napoleonic system operates and oppose it being introduced in England, what they do in Scotland and France is of little concern to me as long as they do not bring it here. Again I will reemphasize; I never claimed that they were incompatible (at least not anywhere I can find, please point it out to me) I take issue with the way the system presents itself and operates.

Secondly, the "guilty until proven innocent" claim for the European system is a misunderstanding of an anachronism. Because *every single EU member state* is a signatory of the UN Universal Declaration on Human Rights, the Council of Europe's Convention on Human Rights and Fundamental Freedoms, and the Charter of Fundamental Rights of the European Union. The latter currently has opt-outs - the first two don't. Common to all three is a commitment to the principle of innocent until proven guilty.

The sword is an anachronism in modern warfare - that does not mean that it is non-lethal. What you claim is in direct contradiction to the way law is practised in France regardless of which treaties they have signed, remember most nation states only pay lip service to treaties they have signed. I am sure you would agree the rescent wars in Iraq and the current on in Afghanistan proves that if anything. Where British and Americans have been caught redhanded violating every single human rights treaties they signed since 1945. Ergo, just because they have signed something does not mean that they actually practise what they preach.

In the French system, the presumption of guilt licenses the judge to suppose that, regardless of whether the defendant is indeed in the wrong, something strange has been afoot worthy of further examination. What follows, then, is an exhaustive inquiry into the facts of the case, which continues until the judge feels that he has achieved an accurate understanding of what took place and can therefore subsume the case under the appropriate law. Indeed, the investigative powers of the judge are so extensive that he may freely suspend the rights of citizens (e.g., by wiretapping or opening their mail) in pursuit of crucial bits of evidence.

You say you don't have "enough judicial or constitutional knowledge to know by what authority our parliament has signed away our liberties" - well I do, and can tell you in detail, if you really want (short version: despite common assumptions, in Britain the people are not, nor ever have been sovereign - and parliament has no compulsion under the British constitution to act in the best interest of the people; it is this single fact about the way the British constitution works that confirmed me to be in favour of some form of European Union as a way of protecting us from the abuses of an over-strong government, much as we've experienced in the last 12 years).

The way you describe Britain it sounds as if we have been living under autocracy since the day of Walpole. Parliament may have no compulsion to act in the best interest of the people (sadly I am not going to take your word for and will double check this for it sounds dubious - at least the way in which you present it) that does not mean it has not done so until as recently as a couple of decades ago.

The irony of what you claim is well described by the oft held view in Brussels; that there was little that did as much for European integration than the attacks on WTC in 2001. That is to say terrorism is a means to their end, a tool which they use for scaremongering to force through drastic measures. I agree the British state under New Labour has done little to protect "An Englishman's home is his castle" but it is nowhere near as bad as the situation we will have if the EU gets full control of our lives.

In the meantime I suggest you pick up a copy of Walter Bagehot's "The English Constitution" - over a century out of date but still a good starting point. You should be able to pick it up second-hand on Amazon for about £3. It'll be an invaluable investment, considering the focus of your blog - though you should probably think about getting Anthony King's more recent "The British Constitution" (OUP, 2007) to get yourself more up to date.

Thank you for those suggestions, I shall indeed get both.

Now Mr. Nosemonkey to your "friend", Tim:

Can I ask the right honourable gentleman Spitifre whether he has no way of voting for the EU nor for Regional Government?

If you do, how come you are signing away freedom to those institutions? Also, being from a land estranged of these isles, I am pretty certain that there are no countries in the EU where you are guilty until proven innocent, no matter how loud you say it here, it is not true.

Did not Mr. Nosemonkey who, I daresay, knows more about this issue than either of us demonstrate that Scotland goes by the Napoleonic system and you will find with a quick google search that so does France.

Tim I am going to assume you a fellow of lesser mental capabilities. Anyone who knows anything at all about the EU knows that the real power lies with the unelected Commission and the Council of Ministers. It was set up that way because, after the massive popularity of Nazism and Fascism, the post-war European elites decided that it was necessary to build institutions that restrain the will of the people rather than express it. In the long run, that's merely a more leisurely and scenic route back to where they came in. There is no "democratic deficit" since this is how it was designed.

So you see our little "democratic" exercise that comes around every 5 years is little but show for the EU parliament has little power. The commission is the only body which has the power to propose laws and if parliament disagrees and throws it out they can still bypass parliament should they so like, of course did would cause some uproar but it is not as if the EU cares about the democracy their treatment of Ireland and Denmark shows that if anything.