5 February 2014

Political Silliness Exposed

Last week I wrote that it is silly to debate the UK's position in the European legal infrastructure in political party-driven terms--whether as a member of the European Union or a signatory to the European Convention on Human Rights (ECHR/ECtHR/Strasbourg). In this post I begin with a quote from Lon Fuller's Anatomy of the Law to explain the cause of that silliness.


Note: This post is a little more political than is usual for this blog. If comments are anonymous, inflammatory, or defamatory they will likely be deleted. But I welcome constructive thoughts.

1. Fuller's Warning and Political Arrogance

Politicians like to keep certain ideas alive in the media. This, when considered with Fuller's analysis, is insidious:
[One] example[] of legislative misbehaviour (…) is that of passing (or retaining on the statute books) laws that are not intended to be enforced at all. Such laws offer to the legislator an easy way of dodging difficult political issues. (p 37)
This observation is directed at a mischief that often finds other manifestations. One is the (almost-) propaganda the media produce to favour apparently popular agendas. An example of this is the quite recent (although for the moment rather quiet) trend to attack European influences and to support a 'British' alternative.

A suggestion in this fashionable topic was a British Bill of Rights (this does not refer to the old Bill of Rights, enacted in 1688–89). This relates to Fuller's roguery because it pretends Britain might float metaphysically further from the continent, thereby widening the Channel. What it avoids is the problem of the physical Channel Tunnel and the equally real economic, political, ethical, and lingual history Britain shares with Europe. None of these can be stretched without consequence. The further Britain attempts to drift, the more unforeseeable are the ramifications. These details render the wishy-washy political gibberish a futile deception. And that is wrong.

Modern legislators are political creatures and somewhat by definition are expected to be slimy. They are supposed to sap warmth like a friend coming in from the snow and sitting next to you in your place by the radiator. But this does not excuse politics from responsibility. Encouraging misguided debates about a new British Bill of Rights is related closely to the problem in Fuller's analysis because such an instrument would not change much. And the legislature know it. The difference would be in nomenclature and jurisdictional delegation; in pretending to move the seat of human rights from Strasbourg to London, the legislature could assert how liberating they are at the same time as not really doing anything at all.

2. Legal Detour

The UK, by virtue of ECHR Article 1, must secure the other ECHR rights for any individual within its jurisdiction. The Human Rights Act 1998 puts those rights within UK courts' jurisdiction so problems can be resolved with fewer trips to the ECtHR. That is, Tony Blair's administration ensured UK human rights problems can be dealt with in the UK without Europe always interfering. Regardless, that interference was never entirely avoidable because under ECHR Article 34 individuals have a (limited) personal right to apply to Strasbourg. If those rights could not be enforced in British courts because the proposed Bill of Rights changed the law, the government would have to consider ECHR rights in their ECHR-format or travel to Strasbourg for resolution more times than is necessary.

3. Relevance to Fuller's Criticism

The media, supported by political statements, indicate that a new British Bill could be used to 'improve' deportation measures. Whatever the iniquity of this, it was never a real option in the first place because, as above, 'successful'* deportation would thereafter rest on individual petitions to Strasbourg. Politicians have therefore hinted at creating frankly-unenforceable law at the same time as not actually attempting to create said law. Political distortions therefore ensured the legislature was never close enough to risk breaching Fuller's restriction. This means any debate within the framework presented by the media is based on a fundamentally puerile venture. The debate encourages ill-founded disagreement between immigration supporters, immigrants, and those who would close the borders. Though Fuller's mischief is narrowly avoided, poor outcomes--encouraging xenophobia and falsely alluding to legislative pro-action--are realised. The resultant debate, therefore, is silly.

It is important that politicians are socially accountable and transparent. Encouraging debate about departure from the ECHR undermines that requirement because it requires public support, and therefore a subtle shift in blame. In this democracy, elected law-makers legislate both on our behalf and in our names (I am sure I should reference Fuller's Anatomy of the Law for this observation but I cannot seem to re-locate a page pinpoint). This means political machinery can promote said debate, lure the citizenry into a misguided in-or-out dichotomous topic, and afterwards rest in safety because the choice was presented as the people's to make. This, it seems, is only possible because elected representatives cowardly behave in opaque ways. Fuller's observation similarly denounces a high opacity. When political chicanery ignores his warnings the result is the same for the electorate: we are all deceived, left to argue among ourselves while the government move on to real possibilities, such as bedroom taxes and promoting economic inequality.

4. A Conclusion of Sorts

The proposals to 'solve' the European human rights 'problem' are thus unacceptable. This unfortunately implies too many people (ie, more than one) fell for a party-political smoke-screen. Nevertheless, the real issue--that power seeking politicians will try to 'dodg[e] difficult (…) issues' (p 37)--remains problematic even if creativity has extended beyond the underlying problem that Fuller abhorred.

Readers may detect sarcasm in my 'solve' and 'problem'. I do not deny it. I support the project to unite Europe. This currently relies on the European Union and the European Court of Human Rights. There are problems with both concepts but the United Kingdom should resist any grand imperial illusions: we are stronger within than without Europe. Moreover, as others recognise, Europe is already happening. The remaining choice concerns the extent of our involvement and influence.

Endnotes
* I put marks around 'successful' because the word cannot conscientiously apply. Deportation implies against-an-individual's-wishes, which even in the best circumstances relegates a person's autonomy to an unimportant inconvenience, at the least. In the worst cases, deportation means being sent to a harmful environment. Neither course can be called a success, surely?


Created: 1 February 2014. Version 1.0.





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