The foreign court on Parliament Square
Westminster politicians complaining about "foreign courts" in principle do not need to look very far for an example
Politicians in the governing party of the United Kingdom are complaining about what they call “a foreign court”.
Of course, to anyone who cares and knows about such things, the court in question is not a “foreign court” but an international court.
But the comment is not aimed at those who care and know about such things, it is aimed at those who easily clap and cheer at hearing lines like this.
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There are foreign courts - in other countries, which have their own jurisdictions and laws, and in respect of which a United Kingdom court would have to take expert evidence as the foreign law in question. Foreign courts exist.
(I have even given expert evidence on English law (causation of loss in English contract law) in another country’s court, where our courts were in turn the foreign courts.)
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The European Court of Human Rights is an international court, and not a “foreign court”.
We appoint one of the judges; we have freely submitted to the jurisdiction; we as individuals can petition the court directly; and the case law of the court can be considered by our courts without the need for expert evidence. It is a court of which the United Kingdom has long been an integral part.
And it is one of many international courts and tribunals of which we are part, from the World Trade Organization dispute resolution mechanism to the International Criminal Court.
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If a Westminster politician wanted a better example of a “foreign court” they need only step outside the Houses of Parliament and look across the square to the old Middlesex Guildhall.
This fine building houses, among other things, the judicial committee of the Privy Council.
To take some examples, this is the judicial committee’s current list of recent cases:
You will see the jurisdiction in each case is not that of the United Kingdom or any of the constituent parts of the United Kingdom.
These are the judges in those cases:
All of these are distinguished and experienced judges, but none of them are from the jurisdictions in respect of the cases they are deciding. In fact, each of these fine judges is from the United Kingdom, a foreign country to the case they are deciding. In none of the cases is there a judge from the relevant jurisdiction.
And if you then look at the judgments, you will see these judges are quite adept at overruling the courts of the relevant jurisdictions:
In about half the cases, the judicial committee of the Privy Council allow an appeal against the courts and judges of a foreign country.
How could this be happening, on British soil?
How are we hosting a court overturning decisions of foreign courts and judges, with different legal systems?
Isn’t this exactly what is being complained about in respect of the European Court of Human Rights?
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Of course, it will be contended, this is different.
The relevant countries submit to the the jurisdiction of the judicial committee of the Privy Council as a final court of appeal, and the judges are usually those who also sit on the Supreme Court of the United Kingdom (which happens to share the same Middlesex Guildhall building, if not the same website).
The judicial committee of the Privy Council is essentially a legacy of the British Empire and Commonwealth.
No country is forced to stay under the jurisdiction of the judicial committee of the Privy Council - and many have indeed left.
But, for one reason or another, many countries have chosen to retain the judicial committee of the Privy Council as their final court of appeal - even though they do not supply a judge for the panel that decides the case.
And there is nothing inherently wrong with this, if that is their choice.
But it is still a “foreign court” in many ways - and a court that can overturn the local courts and judges with no further appeal.
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The United Kingdom has freely submitted to the jurisdiction of the European Court of Human Rights.
And, strictly speaking, it is not even an appeal court: it cannot reverse a decision of a UK court in the same way the judicial committee of the Privy Council can reverse the courts of, say, Jamaica. The UK court decision still stands - and if the UK stays in breach that has to be dealt with on the international plane.
We appoint judges and help shape the jurisdiction and procedures of the court.
And it is just one of many international courts and tribunals to which we have submitted.
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If a Westminster politician is really against “foreign courts” in principle there are many international courts and tribunals to which they can object, not just the Strasbourg Court.
And if a Westminster politician is really against “foreign courts” in principle then they should march across Parliament Square and protest against the very existence of the judicial committee of the Privy Council.
They can even write “down with the judicial committee of the Privy Council” on placard, if they can find a placard big enough.
But they won’t.
For the real reason why some Westminster politicians object to the European Court of Human Rights is, one suspects, not because it is a “foreign court” or even an international court, but because it is called “European”, and it because it upholds human rights.
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Pic credit - the judicial committee of the Privy Council site.
Another fabulous article by David Allen Green.
Many thanks.
Good article - telling things as they are!