For as long as philosophers and political campaigners have asserted that certain rights are basic, universal or inalienable, the right to elect one’s legislators has generally figured in those rights.
England’s 1689 Bill of Rights protected the right to elect Members of Parliament without interference from the Crown. In France the 1789 Declaration of the Rights of Man guaranteed the right to vote. In America, five separate Articles of the US Bill of Rights protect voting rights and both Houses are elected under the Constitution.
The United Nations Universal Declaration of Human Rights provides:
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2)…
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The European Convention on Human Rights was amended in 1954 to add further rights to the original text. Among these protocol rights is:
Article 3 – Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
All these historic statements of a person’s basic rights recognise the right of the citizen to choose his/her legislators. The Universal Declaration and the European Convention on Human Rights spell it our most clearly. As a human being it is my right to universal suffrage and the “chose of the legislature” must be based on “the opinion of the people.”
It does not say “choice of half the legislature”. Nor does it say “choice of the house of the legislature that deals with money bills or has certain privileges over another house.”
It says “the legislature” and the House of Lords is one half of the UK’s legislature. No Bill, expect a purely taxation related Bill, can become a law without going before the House of Lords, which can and usually does, change the Bill.
The fact that the unelected Lords have a share of control over the law on this country is an affront to my basic human rights and to yours.
The European Convention on Human Rights right to vote for one’s legislators has been protected by the courts.
In the case of Matthews v United Kingdom 1999 the European Court of Human Rights upheld a complaint by Mrs Denise Matthews that the denial of the right to vote in elections in the European Parliament was a breach of her human rights (and the rights of every citizen in Gibraltar). Perhaps as outrageous as our own government’s resistance to Mrs Matthews’ claim was the counter-suit by Spain in the European Court of Justice. The Spanish and British governments were united in not wanting Gibraltarians to vote for MEPs. The European Court of Justice followed the European Court of Human Rights and sided with the basic right of Mrs Matthews to elect the people who make the laws that she lives under.
I have doubts that the European Court of Human Rights or European Court of Justice would uphold a claim that British citizens are denied their basic rights because they can only elect half the legislature. It is difficult to set out why without making this a too long legal essay.
But to my mind that the denial of citizens’ right to vote for the whole legislature is the plainest possible violation of the spirit of the European Convention on Human Rights.
Some people say the House of Lords has done more than the Commons to protect civil liberties. I think an elected Senate would actually be even better on civil liberties than the appointed Lords. But the existence of the unelected Lords is itself a grave attack on civil liberties.
* Antony Hook is a Liberal Democrat MEP for South East England and has practised as a barrister since 2003.
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33 Comments
It has now become possible to conceive of a chain of events in which the UK could actually leave the EU. This would be utterly foolish, but it is possible that too many people in the UK need to see what happens being outside the EU to realise that they need not only to belong, but to take a positive role.
In this light I have wondered what stipulations would be imposed if the UK tried to re-enter. I am quite sure this would include adopting a more democratic and representative voting system as well as a adopting a process that would lead to the adoption of the common currency.
Any new prospective members to the EU would be told that a senate such as we have in the Lords is not acceptable.
P.S. Please note I am not confusing the European Court of Human Rights with the EU.
Bit late for this, no?
Besides, the Lords are appointed by democratically elected representatives of the people, so I’m not entirely sure your argument holds.
“Unelected Lords are against the spirit of the European Convention of Human Rights”
The only possible answer to this is to leave the ECHR.
No-one , and i mean no-one, but the British people get to decide what is a legitimate forme of governance for the British people.
“It says “the legislature” and the House of Lords is one half of the UK’s legislature.”
Actually, the legislature has three constituents, one of which is the monarch. I don’t think you’ll get very far arguing that the ECHR obliges the UK to become a republic.
Jedi re:
“No-one , and i mean no-one, but the British people get to decide what is a legitimate forme of governance for the British people”
Is your irony intended or unintended?
@jedibeeftrix – sounds good to me. Now remind me when the British people decided that the current form of governance was appropriate.
And legally your talking nonsense. for at least three reasons:
1) As Anthony says the ECtHR wouldn’t hold that this was an actual breach. I can understand why he doesn’t go into details as to way but part of it will be just that point.
2) This right is in a protocol to the convention. States can chose not to sign up to protocols and remain party to the convention as a whole (prohibition of the death penalty is another convention – we signed the convention whilst still operating the death penalty). So there is most definately an answer which doesn’t require withdrawal from the whole convention.
3) In any case the “British people” have chosen to sign up to, be bound be, and incorporate into their law this particular convention
The idea that no-one apart for Brits shoud choose the form of Britsh government is ridiculous.
Not too long ago, Britain was miltarily involved in choosing the form of the Libyan government. For years we have been positively changinhg the forms of givernment of other countries, such as Irasq, Afganistan, India, SIngapore. Right now we are providing some forms of support to people who wish change the form of Syrian government, There are many precedents where a country’s formn of government has been partially determined by non-nationals, and there is no justification at all for the UK to set itself outside that. Right now the UK is amongst those who feel justified in criticising a certain erstwhile Communist member of the EU for inappropriate form of government.
Quite the opposite. What we need in a future world is some concept of what governments must do for their peoples, and what they can and cannot rightly do. It is not right, in my view, that the Syrian government should put down a popular uprising by shelling urban areas where there are civilian non-combatants that include women and children. It is not right that their form of givernment allows this.
If we are to move towards some civilized world in which governments themselves are regulated, Brotain must be a part of it – Britain must accept that its government must comply with acceptable international norms.
… but,to return to the point of the article, the answer is No. Just recently, the UK had an opportunity to change its form of government. A majority of those people who had been freely elected to represent the population freely chose not to do so. The majority consisted mainly of the Labour party and ninety odd Tories. That is entirely consistent with the UN and ECHR statements of rights, and indeed the process followed exactly the requirements in the UN’s Article 21. Obviously a rferendum would have made it absolutely apparent that the ECHR statement was satsified, but it is also the right of a population to have a government that does not waste its or the population’s time and money.
@ Hywel – that is fine then, the response was was predicated on the possibility of being forced to ditch the lords.
@ Martin – why irony?
@ Richard – “The idea that no-one apart for Brits shoud choose the form of Britsh government is ridiculous.”
You might argue that, will others agree? The iraqi insurgency is a good example of the price that can be paid when governance is deemed illegitimate.
And we do hold to the notion that parliament has absolute sovereignty, which in turn answers to the british people.
Good article from Anthony – what would help the most is if both ECHR and both the executive’s and legislatures’ composition, powers, how they get there etc (including electoral method) were put into a written constitution. The weakness of not having a Written Constitution in the UK (almost unique in the democratic world) is that we make all this stuff up as we go along, and constitutional reform slips up on every passing political banana skin..
We British don’t always trust or like our government, so I suspect that many British people would indeed agree with some form of international law that determined what a government’s duties are and what it could or could not do to the population.
Quite apart from humanitarian and ethical issues, international law is required to support trade and cross-border investment. Once we support international law, we as a population would naturally require our own government to obey it, just as we act to require other governments to obey it.
“We British don’t always trust or like our government, so I suspect that many British people would indeed agree with some form of international law that determined what a government’s duties are and what it could or could not do to the population.”
I would put it slightly differently:
We British have never particularly liked or accepted authority, which can be contrasted with some of our continental neighbours who see Government as enabling their freedom, so exchanging one form of authority with another is unlikely to prove successful. Particularly when that authority is deemed less representative and less accountable, as noted by many commentators such as the old Charlamagne who noted that the British have never fallin in love with EUrope, always viewing it in transactional terms:
http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2012/rp_096-5185.pdf
I would suggest that is difference is due to the following:
English Common Law with its roots in the concept of Natural Law has led to a presumption of negative liberty; I am free to do anything that which is not specifically proscribed by the law. Rights are defined as being against interference by the sovereign in the liberty of individual on matters of religion, speech, press, assembly, and free markets.
Continental Civil Law with its closer association with Legal Positivism has led to a presumption of positive liberty. It is my right, as codified in the system of laws, to be able to act in this manner. Rights are defined as things you are allowed to do by the sovereign such as freedom of religion, speech, press, and assembly. You are enabled to do these things.
Regardless of the above supposition for why, i think you’d be hard pressed to come up with any evidence that the British public hold any particular regard for the ECHR when it conflicts with what might be termed British justice.
And no, as per Martin above, I am not directly conflating the EU with the ECHR, merely noting the legitimacy deficit perceived in supra-national authorities.
Show me your Demos.
Funnily enough, I seem to have read in an OU text that some aspects of the cmmon aw approach are being intriduced into EU law, and that some aspects of teh continental legal system, including the inquistorial approach, are being introduced into the UK system. I’d have to search the attic to get the full references, and I have better things to do!
There is plenty of evidence that British people support the ECHR in some of the cases where the ECHR appears to conflict with what a small part of the UK population might regard as “British”. The evidence includes all the cases brought against the UK government by British people!
There is also plenty of evidence that British people agree that properly regulatd authority can enhance the quality fo life. The evidence is in the workplace, which is a place of regulated authority that benefits the people there through work’s social and financial benefits. Here is some more evidence – the ECHR was largely drafted by Britain, and that the UK was one of its first signatories.
So, in the end, it really is ridiculous to suppose that British people will not accept forms of government that are determined by non-British people. British people would actually welcome some aspects of that. The Daily Mail does not speak for everyone, as any competent historian would confirm!
“Funnily enough, I seem to have read in an OU text that some aspects of the cmmon aw approach are being intriduced into EU law, and that some aspects of teh continental legal system, including the inquistorial approach, are being introduced into the UK system.”
No need, it is very true.
“There is also plenty of evidence that British people agree that properly regulatd authority can enhance the quality fo life.”
I would never argue that properly regulatd authority can enhance the quality fo life, merely question the percieved legitimacy of a source of authority.
“Here is some more evidence – the ECHR was largely drafted by Britain, and that the UK was one of its first signatories.”
Again, no argument as to the provenance, merely noting that the failure of the SCHR to apply margin for appreciation and the principle of subsidiarity is destroying its legitimacy at home.
A very interesting post, not least for the reference to the European Convention: “High Contracting Parties undertake to hold free elections at reasonable intervals”. Like many things, courts could argue for years about the definition of “reasonable intervals”, but I think 7 years is the current longest term (used in Israel and Ireland). Introducing a 15-year term could therefore be regarded as unreasonable.
Jedi British Politics do not have much basis in concepts o negative freedom. Our politics are in fact based contractarianism Half of the disagreement with Europe is a feeling that other countries don’t play by the rules. Britain in fact has a “proud” history of banning stuff it deems bad for the general population and more cameras pointed at its people than anywhere on earth. We even execute breeds of dogs because they might be more dangerous thant aproved breeds of dogs. The smoking ban was not ignored here as it is in most of France, Spain and even parts of the US. We’re basically line towers I’m afraid,
It’s not a love of positive or negative freedoms that drive most Eurosceptics. It’s an argument about who gets to impose the rules and what those rules are.
@ jedibeeftrix “No-one , and i mean no-one, but the British people get to decide what is a legitimate forme of governance for the British people” Hmmm! Not so long ago I think we had an election where all the main political parties supported reform of the House of Lords. What we have just seen is a sizeable back-bench minority from a party which failed to gain majority support at the polls scupper the will of the electorate. Also, you sound as though you believe Briton’s have a similar relationship to Government as do the American Right!
@ Glen – “We’re basically line towers I’m afraid, It’s not a love of positive or negative freedoms that drive most Eurosceptics.”
Certainly we would seem to have no problem with civil compliance, but that perhaps is a function of the reduced regulation. Negative freedom has been a recognised function of british civic life at least as long as Isiah Berlin has been knocking around.
@ Stephen – “ot so long ago I think we had an election where all the main political parties supported reform of the House of Lords. What we have just seen is a sizeable back-bench minority from a party which failed to gain majority support at the polls scupper the will of the electorate.”
……………… and in our adversarial system it is very easy to proportion blame for misdeeds of governance, and find the culprit to punish at the next election. whether the electorate choose to punish the tories for lords reform is a direct function of how much they care about it, it will be interesting to see.
@ Stephen – “Also, you sound as though you believe Briton’s have a similar relationship to Government as do the American Right!”
What, limited government intereference into personal life, perhaps yes.
However, it goes by another name that should be very familiar in these parts; classical liberalism.
“Introducing a 15-year term could therefore be regarded as unreasonable”. No, it would not be, because what was planned is that there should be elections for a third of the membership of the House of Lords every five years. As I recall, this particular proposal was made by the all-party Wakeham committee on House of Lords reform- presided over by a formerConservative cabinet minister – some years ago, so it is hardly a novel and startling proposition now.
@ jedibeeftrix “However, it goes by another name that should be very familiar in these parts; classical liberalism.” … Or should that be Laissez-faire ? Not many classical liberals posting here then!
Apologies for the non-classical “Briton’s”!
well, my interest here is subsidised by the potential of the current party in recognising the strengths and achievements of its forerunner, is this of no interest to anyone?
Many intersting comments.
May I just pick up this by Jedi:
“No-one , and i mean no-one, but the British people get to decide what is a legitimate forme of governance for the British people”
But the problem is the British people don’t get to decide if we don’t have elections? The law as it stands and as it is maintained by Parliament denies the people the very right you identify.
then change the law, via public pressure.
parliament is supreme……………… at the whim of the people.
Ah, now that identifies the difference between us.
I follow in the tradition that there are certain rights that are so fundamental Parliament (or Congress in the US) cannot interfere with. There is broad agreement as to what these should be, which is why I started my article my reference to the historic statements of rights.
By your argument wouldn’t be legitiamte to abollish all elections if that is what “the people” (really a majoirty of the people?) wanted. As a classical liberal you will recall Mill’s argument that in a liberal system a person cannot chose to give up their liberty and become a slave.
I frame the argument differently; there is no such thing as a right but which the people are willing to enforce as a right, they are responsible for the health of their own democracy.
Parliament is sovereign, but we do not have to assent to the legitimacy of its acts.
Explained rather nicely by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645:
“It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.”
“Highly improper” is a polite way of saying it could justify what some people would hold to be lawful rebellion. Is a government ever going to pursue such a conentious issue? I ask because in the British those ornery types do exist.
To quote Richard Dean: “What we need in a future world is some concept of what governments must do for their peoples, and what they can and cannot rightly do.”
I agree with this. But what I would say that this is the role/raison d’etre of the House of Lords and for this to be done effectively and meaningfully it would be necessary to ensure a balanced presence of minds in the second chamber. The political, representational level is not the only single premise/benchmark for the creation of this necessary balance.
“parliament is supreme……………… at the whim of the people.”
a) the GE election returned members to the Commons, 90% of whom were elected on manifestos calling for an elected HoL, so the whim of the people has clearly expressly been thwarted
b) “at the whim of the people” is rather ironic given that the popular whim has no part in the current arrangements for the HoL
Are you being ironic or are you being obtuse?
On the basis that prevention is better than cure I would prefer a constitution to a revolution.
@ Paul – “Are you being ironic or are you being obtuse?”
as noted above:
“in our adversarial system it is very easy to proportion blame for misdeeds of governance, and find the culprit to punish at the next election. whether the electorate choose to punish the tories for lords reform is a direct function of how much they care about it, it will be interesting to see.”
given that some issues cut across party lines, like HoL reforms, i am quite open to the notion of popular referenda which would provide a further mechanism to enforce popular will when our adversarial electoral system fails to react.
@ Anthony – “On the basis that prevention is better than cure I would prefer a constitution to a revolution.”
merely the threat of revolution, and our non-codified constitution has proven very flexible in accomodating even the most tumultuous of history’s events.
……And an unelected monarch plus the monarch’s unelected numerous kith and kin?
Nonsense – and not even nonsense on stilts.
“Some people say the House of Lords has done more than the Commons to protect civil liberties.” Quite.
As the Icicle Works sang “be careful what you wish for it may come up and surprise you”.
Perhaps Nick Clegg’s advisers could remember that lyric.
Kiron Reid, Liverpool.