UK getting out of human rights - the world celebrates

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The Greeks and French would view the right to strike as a human right.....

So do I. China is an example of a country where workers have no rite to strike. As was the Soviet Union. It's honestly pathetic the way unions are viewed in this country. It's laughable union bosses get labeled as barons. They are democratically elected. It's countries where democracy is non existent that the rite to strike doesn't exist. People on these forums have even equated unions as being bad because 'go look at China, that's why unions are bad'. If these people had any mental faculty they would note how their position of 'workers must not strike' is more in line with the authoritarian 'communist' party of China.

So do I. China is an example of a country where workers have no rite to strike. As was the Soviet Union. It's honestly pathetic the way unions are viewed in this country. It's laughable union bosses get labeled as barons. They are democratically elected. It's countries where democracy is non existent that the rite to strike doesn't exist. People on these forums have even equated unions as being bad because 'go look at China, that's why unions are bad'. If these people had any mental faculty they would note how their position of 'workers must not strike' is more in line with the authoritarian 'communist' party of China.

I think there are legitimate issues in terms of Strasbourg's jurisprudential philosophy. I was actually at a panel discussion on Thursday night with Sir Keir Starmer QC, Vicky Price and Simon Someonearather.

I asked Simon whether he felt there was something of a distinction between fundamental human rights and protections, like protection from torture and arbitrary detention on the one hand, and more nebulous rights like prisoners voting "rights". I am firmly of the opinion that removing voting rights for the period of imprisonment is a more than justifiable mode of censure and expressing society's displeasure with the crime committed. I do believe that prisoner's voting rights should be considered wholly within the margin of appreciation and a political issue.

However, that is merely an argument for attempting to move Strasbourg towards a more tolerant and accommodating view on those "rights" which are less than fundamental. It is emphatically not an argument for repealing the HRA, and in doing so severing our link to Strasbourg jurisprudence; that is preposterous, churlish and highly detrimental to our international reputation and the ability of the judiciary to protect the rights of individuals

Why shouldn't they? Does the political climate of the country affect them? Yes. Since they are citizens of the state and are complying with the social contract in going to prison and so remaining there until such time as the state deems it appropriate to release them, why should they not have the ability to vote?

Does the ruling political party have the ability to change the conditions of prisons? Absolutely.

Thought experiment: Suppose that the ruling party changed the conditions of the prison, such that prisoners were much worse off than they currently are. Changing conditions in such a way could easily violate the social contract (e.g. they could implement various forms of torture). As a barrier to unrestrained political power, prisoners should be able to have the right to vote so that the social contract remains effectual and politicians aren't acting willy nilly in regards to prisoners' well-being.

The harsher the treatment in prison, the more likely prisoners are to rebel against the sociopolitical system as a whole upon their release. Harsher treatment moves towards retributive justice and away from rehabilitative justice. This creates an overall negative benefit, as prisoners so treated are less likely to contribute back to the system. Allowing prisoners to keep their right to vote allows them to have a say in the country in which they are (most likely) going to eventually re-enter. As such, they feel more closely linked to the system and share in sociopolitical responsibility of citizenship, thereby feeling as though they haven't been entirely 'othered' by the state.

Finally, a right is there to protect a minority (like prisoners) from having their rights violated by the majority (like, in your words, 'majority of UK'). Rights are going to annoy people sometimes, they're going to make some people unhappy. That's what they're there to do. If rights require majority approval, then by definition THAT'S NOT A RIGHT. That's called a privilege.

That's not a flaw in logic.

(1) If prisoners' don't need the right to vote, why do they need the right to not be tortured? If we're going to subject prisoners' rights to majority approval rather than on a philosophical conception of rights, what's to stop anyone from removing their right to not be tortured?

(2) I merely listed torture as an example. Any number of things could infringe the social contract.

That's only managed to answer, and poorly at that (see point 1 above), one part my response. You've failed to address anything related to social contract and prisoners re-entering society after having been in prison, the effects of state 'othering' and sociopolitical ostracizing. You've failed to address why prisoners shouldn't be able to vote. And, stemming from that, you've failed to address why prisoners shouldn't be able to vote so that their political concerns have a political actor's voice.

Please don't criticize someone with a degree in philosophy what is or is not a flaw in logical reasoning. I promise I'm far more skilled/trained in forming logical and identifying fallacious arguments than you are.

It doesn't need to be 'so serious', it merely needs to infringe the social contract. We could go so far as to say that without political representation, the state is violating the social contract by disallowing prisoners to have a political voice. When the individual surrenders sovereignty to the state, the state must respect that sovereignty. In disallowing political representation the state deprives that person of their transferred sovereignty. If the state is going to remove individuals' transferred sovereignty, then rather than imprisoning them where they are still subject to the contract and state laws (and thereby, should still have political representation as citizenship without representation is antithetical to democracy), they should deport them to somewhere they will not be subject to that particular state's laws.



I haven't 'studied' social contract since probably my first or second year of university, which would have been... 4 to 5 years ago. I've already graduated with a degree in philosophy and politics, specializing in political philosophy (among other things) and am now working on a thesis focusing on, inter alia, the same topics. Don't try to mock someone about introductory courses if that person has had years more education than you on the subject - it's childish and silly.

I think you need to pick up Crito. They didn't break the social contract - the social contract is the reason they're in prison. The social contract stipulates that should you break some law, X, the punishment shall be prison. In going to prison after having broken a law, the social contract remains in force as the social and political order instituted by the contract is being observed.

You're going to need a better argument than that.

Still waiting for these examples of things which prisoners need voting rights to prevent/obtain......

The question of whether we should leave the ECHR is a separate question to whether the ECHR needs updating and refreshing.

One way it which it needs updating is that it is no longer tolerable for the judiciary to radically re-interpret the Convention without those reinterpretations being anchored in democratic legitimacy.

At the moment European consensus means no more than the opinions of the guests sitting around the judges' respective dinner tables.

The ECHR has lost sight of judicial restraint; the recognition that because they are unelected they should only either be applying old principles to new circumstances or creating new principles where clearly the public are ahead of them.

...

I disagree. The ECHR only needs updating and refreshing if it isn't working; and the ECHR should only be left if it isn't working. The questions are closely linked.

I disagree on this point as well. I see absolutely no reason why a rights instrument needs democratic legitimacy in the sense you're talking about. If rights require democratic legitimacy, then they aren't rights, they're privileges.

Rights don't get to be voted on by the populous. If you can vote on someone's rights, they aren't then rights.

Except when we examine the decisions coming out of Strasbourg, when referencing European consensus the judges clearly to point to where this practice is used.

This argument is incredibly unpersuasive to me.

(1) I'm a legal constitutionalist, so I think that judges should have strike down powers.

(2) Particularly within the UK under the HRA, I've argued that judicial deference should be almost non-existent. Because the HRA can create a dialogic model, there is no reason for an exercise of judicial restraint. In relation to the ECHR, I have yet to see the ECHR produce a 'radical' decision that is so far removed from modern conceptions of rights principle that its just outrageous. In fact, I've yet to see the ECHR move far or fast enough. For example, look at how long it took the ECtHR to allow legally recognized trans identities under Art 8; more recently, the ECtHR ruled that married trans individuals who live in countries without same-sex marriage must divorce, art 8 and art 12 offer them no protection.

(3) I'm mostly a Dworkinian and think that there is a 'right answer' to be reached irrespective of political opinion on the subject.

I would question your ideas on the courts needing updating because of their lack of democratic legitimacy. Isn't the entire point of a court, particularly one dealing with human rights, to be a check on the power of democracy? You may not like some of their decisions (i.e. if you are part of the majority whom they rule against) but that is them fulfilling their role is it not? I fail to see your need for them to have the public behind their every decision.

You have fallen into the same trap as NYU. Courts determine whether individuals possess rights and whether those rights have been broken. Legislatures create new rights.

What the ECtHR has been doing has been creating new rights.

Where in the text of the ECtHR does it say that someone has the right to vote? If someone does not have to have the right to vote , it cannot be an infringement of the ECHR to deprive him of it.

Think about it, when the Charter was signed, the majority of British citizens did not have the right to vote, because they did not live in the United Kingdom. It is inconceivable that we would have drafted a Charter that would have obviously and immediately have put us in breach.

I take it you don't believe in any kind of intrinsic rights then? What about derivative rights?

It depends on how you look at it really. Generally the basis of a right to vote is derivative from one's citizenship. That intrinsic in being a citizenship in a democracy/republic that you implicitly must have the right to vote. The ECHR recognizing this, and other rights 'created', tends to fall in line with this idea of derivative/implicit rights.

Yes but the point is that it is supposed to be a living document. The ECHR is supposed to grow and change as is necessary/appropriate with the progress of society.

I believe that certain rights are intrinsic, but because I believe that, I believe that they were intrinsic last week and the week before. The idea of a new intrinsic right is an oxymoron.

Eight years ago, it was estimated that there were 13.1 million British nationals living abroad of whom about 3 million had the right to vote. The numbers would have been far higher in 1950 when the ECHR was entered into. There were 37.8 million British citizens in Nigeria alone. None would have had a vote. It was never implicit that British citizenship carried the right to vote. We lost the American colonies on this argument.

Where does it say that in the ECHR? Why isn't it subject to the same canons of construction as every other treaty?

It wouldn't be saying that the right is new, just newly recognized.

This has been the practice since very early on. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021836) It is a form of political/legal thought that such agreements (particularly in regards to human rights) shouldn't be stagnant as they may become obsolete or may not make sense of society evolves. I would suggest looking at the US second amendment as an example of an antiquated right that could benefit from this sort of interpretation.

There are many negative aspects to this (Chris Grayling's proposals were just rubbished by Dominic Grieve, former Tory Attorney General, who says the document contains many outright lies about how European Human Rights operates), but I thought it was worth a pause to consider who will be offering the Tories congratulations from around the world when this gets done and the news goes global.

China
North Korea
Islamic State
Burma
Venezuela
Cuba
Zimbabwe

EDIT I removed Russia - they are in the convention, however sloppily implemented in reality. I'm sure Putin will be sending personal congratulations to Cameron though for this bold move.

However, the Second Amendment is incapable of such interpretation because of the false premise and therefore should be given a strictly originalist interpretation. If it existed in 1791, you have the right to bear it; and if it didn't, you don't. So, flintlocks, cannon and muzzle-loading rifles may be freely borne by US citizens but revolvers, sub-machines and surface to air missiles may not.

This has been the practice since very early on. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021836) It is a form of political/legal thought that such agreements (particularly in regards to human rights) shouldn't be stagnant as they may become obsolete or may not make sense of society evolves. I would suggest looking at the US second amendment as an example of an antiquated right that could benefit from this sort of interpretation.