Some of you may have been watching the ongoing drama between the Cabinet and the Supreme Court, also known in the UK as a Punch and Judy show. As it stands now, the Conservative Party’s proposal to transfer asylum seekers to Rwanda has been deemed unlawful. But what exactly does that entail? And where does the Supreme Court derive its power from?
This current spectacle is just another crisis in a continual pattern of global crises. But what do they all have in common? One aspect is the conception of global governance, which denotes a process through which international institutions coordinate independent nation-states.
This is where the Council of Europe comes in. CoE is an international organisation founded on May 5, 1949; its aims are to promote democracy, human rights and the rule of law in Europe. One crucial aspect of this is the European Convention on Human Rights. So, it would seem that the Supreme Court derives its authority from the ECHR or does it? We need to determine where the ECHR derives its jurisdiction to answer that.
The CoE does not ratify treaties; member states ratify treaties that have been negotiated within the Council of Europe, and once an agreement is reached, the treaty is adopted. After adoption, member states have the option to sign the treaty or reject it, if signed the next step is Ratification which is the formal process through which a country gives legal effect to a treaty at a national level implementing the treaty’s provisions into domestic law.
That means the UKs Supreme Court’s power to prevent the Government’s actions is derived from parliamentary sovereignty. It’s almost as if the Government blocked itself. So, why is this happening, and how did we arrive at this paradox? To answer that, we must examine the three goals of these agreements: democratic principles, human rights, and the rule of law it would seem one of these concepts may not be compatible.
The UK’s democratic principles are deeply rooted in our constitutional monarchy and are characterised by our parliamentary democracy. Parliament is the highest legislative authority responsible for creating laws and representing the public’s interests. It comprises the House of Commons and the House of Lords. The Commons is the lower house, comprised of elected Members and the Lords is the upper house and is not elected. Its membership includes life peers, bishops, and hereditary peers.
In the UK, general elections are held every five years to elect Members of Parliament (MPs) to the House of Commons. Each MP represents a specific constituency. The leader of the political party that wins the most seats in the House of Commons usually becomes the Prime Minister. The Prime Minister is the head of the Government and leads the executive branch.
The rule of law means that everyone is subject and accountable to the law. The concept of due process is that legal proceedings are fair, transparent, and conducted according to established rules, such as the right to a fair trial and legal representation. The law should be applied consistently, without favouritism or discrimination.
The concept of human rights law is rooted in the idea that every individual possesses certain rights by virtue of being human; these rights are seen as the basis for human dignity and justice, which encompass several vital principles. Human rights are universal, apply to all people, and are codified in international treaties, conventions, and declarations. Recognising practical constraints, some human rights, particularly economic and social rights, are subject to progressive realisation. This means that states are to take steps to move toward the full realisation of these rights.
Human rights, as a concept, are relatively new when compared to democracy and the rule of law while the latter two have been long-established principles within the confines of the nation-state. As a result, human rights may conflict with democratic principles and alter the law’s nature.
Arguing against human rights law is hard; it seems like a noble cause. However, we must examine the practical implications of human rights law to understand its actual effects. The idea of progressive realisation is where the problem lies. This dogmatic approach to achieving universal human rights is creating a situation where democratic principles and the rule of law are less important than achieving this goal.
So, what practical implications have caused such a contradiction within the heart of our Government? Given the Universal nature of human rights, no single nation could hope to implement them worldwide. Putting aside the fact that the conception of what is and isn’t a right varies wildly from one part of the world to another. This has given rise to the prominence of international institutions that implement this idea in practice; the nature of such institutions is often undemocratic. They are not elected or accountable to any electorate.
So, the Government finds itself in a position of its own making. On the one hand, the Conservatives have been given a clear mandate to reduce immigration and to reestablish the nation’s sovereignty, evidenced by the Brexit vote and subsequent election promises. So why has this not happened, and why would a nation thwart the democratic will of its electorate?
It appears that past governments in various countries have established international institutions that control future national governments by implementing what it calls international law(treaties), which directly opposes democratic principles. Human rights are one of these legal instruments that have been implemented. The Government has agreed to give the ECHR the authority to grant the Supreme Court the power to make decisions that block its legislation and the people’s will. This raises the question of who these international institutions truly represent if they do not represent the majority of people in their member nations.
Although they may claim to represent individuals and their rights, the question arises about how this works when individuals vote for change. The reality is that protecting individual rights by thwarting the democratic vote of an individual is precisely the contradiction. Things become more complicated when we consider who is represented. The legitimacy of international institutions is based on minority rights and it only takes a little reflection to see what concerns our political elites, both nationally and internationally.
Our Government signs international treaties that establish precise guidelines for the nation’s policies; treaties are then passed into domestic law. This raises the question about the electorate’s role in shaping these treaties; there is no democratic or rule-of-law element to this procedure; almost all decisions regarding human rights law are left to the discretion of politicians and unelected figures. The lack of transparency makes it difficult to determine who decides these rights.
A legal mechanism has been created that gives them complete control over the nation’s destiny, intentionally or accidentally. Although voting may seem democratic, the Supreme Court uses the Government’s legislation to block policies that challenge liberal orthodoxy under the guise of international law or human rights.
Over the past fifty years, we have been either unconsciously drifting or intentionally guided towards a state of legal authoritarianism, a political structure designed to give power and control to a centralised authority. In such a system, the Government may use legal mechanisms to silence dissent and exercise strict control over the population. Characterised by a lack of transparency and accountability, the legal system perpetuates the interests of those in power. This can lead to a breakdown in the rule of law.
A system that undermines the rule of law and replaces it with authoritarianism to maintain power threatens democratic principles and will lead to injustice, social unrest, and a lack of accountability for those in power. This type of system allows the ruling party to manipulate the law to their advantage and use international institutions to restrict policies and political opposition. This creates an atmosphere of fear, distrust, and social division.
The situation at hand is uncertain, but the fundamental queries remain: we have a choice between maintaining independent nation-states that adhere to democracy and the rule of law or embracing a system of global governance where power is concentrated in a handful of international institutions that enforce strict legal boundaries on a national level in the name of human rights.
