Giving away the rod
Enoch Powell
I am opposed to judicial corporal punishment, always have been and, so far as I can see, always shall be. I am even more opposed to the question of that penalty in the United Kingdom being submitted to a tribunal outside this country and to the decision of that tribunal being treated as binding. Assuredly the verdict of the Fool upon King Lear has come home to us: • 'When thou gayest them the rod and puttest down thine own breeches, Then they for sudden joy did weep And I for sorrow sung, That such a king should play bo-peep Ancl go the fools among.'
Indeed we have 'given the rod' to nations which have been better acquainted than ourselves with tyranny and inhumanity. It was no good the Prime Minister telling the Bangladeshis last week that the making and administration of the laws of this country is our own business. He had evidently suffered a fit of amnesia, and overlooked not only the European Communities Act, 1972, which tore a great hole in this country's legislative independence, but that much earlier aberration, the signature of the European Convention of Human Rights in 1950.
At least the European Communities Act, if I remember rightly, had been the subject of a debate or two. The Convention of Human Rights did not even rate a half-hour adjournment. The Attorney General of the day, (one Shawcross), informed an inquiring MP that 'it is not contemplated that any legislation will be necessary to give effect to the terms of this Convention' because 'I think we are entitled to say that the law of this country has always been in advance of the laws of most other countries in regard to human rights'.
All humbug is punished sooner or later; but Nemesis is notoriously slow, and it was a quarter of a century before she struck and the United Kingdom found itself, to the malicious glee of her neighbours, the first signatory state to the Convention to be found guilty of a breach of its terms, in Ulster in 1971. And now we have come up before the beak for a second wigging, because on the application of one of our own citizens we are accused of 'degrading treatment or punishment' inflicted in the Isle of Man.
It is impossible to exaggerate the revolutionary significance of the recognition of a binding judicial tribunal external to the realm. There is no similarity between this and international arbitration, where a state voluntarily agrees in a particular case to accept the judgment of a tribunal, as two individuals might freely agree to accept the adjudication of an arbit rator. International arbitration is no more a transfer of sovereignty than private arbitration is an ousting of the jurisdiction of the courts. The European Convention is different in kind, and the British signatories of it, worthy predecessors to the signatories of the Treaty of Brussels in 1972, put an end to a period of more than four centuries during which no causes have been carried out of this realm. It is a thousand pities that the writ of Praemunire which Henry VIII used against Wolsey etc was no longer available to prevent them; for despite the fairseeming terminology of Human Rights, the result is incompatible with the elementary principles of justice and of democracy as we understand them.
The consequences strike at the right of the people of this country to live under the laws made and altered by their representatives in Parliament. This ceases to be possible where a document accepted as binding is bindingly interpreted by an external court. In order to arrive at its findings, the European Commission does what no court in this country can do, namely sit in judgment upon the policy and justification of an Act of Parliament. What is more, and equally incompatible with our conception of parliamentary democracy, the judicial interpretation of the terms of such a document as the Convention is not susceptible to statutory control or modification. In the system to which the European Convention belongs, the judiciary are the legislators, and their powers as such are the more sweeping because of the necessarily vague and general terms in which the so-called human rights are defined.
There is a further twist of the knife in the birching case: it calls into question our right to maintain the peculiar forms of connection which exist between the United Kingdom on the one hand and the 'Islands', viz. Man and the Channel Islands, on the other hand. By accepting the jurisdiction of an external authority in domestic matters, the UK in effect converted her responsibility for the external relations of the Isle of Man into a total responsibility for its internal affairs, and abrogated by a sidewind the semi-independence of the Islands, which are under the Crown but not part of the United Kingdom. I wonder if the Manxmen and the Channel Islanders
understood that in 1950!
However, if we do not like being judged by an external tribunal, if we do not like our citizens being interrogated by foreign judges about acts committed in the United Kingdom, if we do not like our Acts of Parliament and our internal administration being scrupulously picked over by a European Commission, if we do not like the relations between the Crown and its pos sessions being altered over our heads, the remedy is in our own hands. Do we really believe that the rights we enjoy under our laws compare favourably with those in other societies? Then let us tell the world so.
If not, let us put our own house in order and not wait for others to do it for us. In either case, let us call off our participation in the dangerous humbug of international conventions of so-called 'human rights'. I don't expect we shall — not yet. But one day, if the long sickness of self-abnegation and denigration is ever over, we shall have to do it.
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