BNO, British Bill of Rights and ECHR Protocol No.4

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蘋果日報關於BNO訪問後,有高登巴打問ECHR Protocol No.4同British Bill of Rights有乜關係,等小弟呢度解釋吓。

首先,要了解乜叫ECHR Protocol No.4

ECHR(歐洲人權公約),係一樣仲早過歐盟存在嘅嘢,基本上所有歐洲理事會(Council of Europe)成員都要簽嘅公約,所以連俄羅斯都係簽字國嚟。而ECHR有好多叫Protocol嘅附加文件,而其中ECHR Protocol No.4 Article 3係咁寫(European convention on human rights, 2012)

1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
2. No one shall be deprived of the right to enter the territory of the State of which he is a national.

簡單嚟講,就係你係果個國家國民,就有權住喺果個國家,否則就係違反人權。大家諗到Protocol No.4英國國會一確認有乜結果,就係BNA 1981同Hong Kong Act 1985即時違憲,呢個亦係歐洲從來唔夠薑明刀明槍話BN(O)無居歐權嘅法理依據(無錯,全歐洲都Ratify咗No.4,無人想陪英國癲)。

而英國國會亦知道呢個法理風險,2009年上議院政府回應條議員Q果陣咁講(House of Lords, 2009)

In response to Question HL349, the United Kingdom has not ratified the Fourth Protocol to the ECHR. There are continuing concerns over Articles 2 and 3 of that protocol, which could be taken, respectively, to confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have that right. In the absence of any change in the arrangements for issuing British passports and the relevant provisions of our immigration legislation, it is not possible to ratify the Protocol. Given that protocols may not be ratified in part, the Government have no plans either to ratify Article 1 of the Protocol nor to incorporate it into the Human Rights Act, as the framework of the Act permits incorporation only of those substantive rights by which the United Kingdom is bound under the ECHR. Nevertheless, there exists no provision in the law of England and Wales that directly permits the imprisonment of a person for a failure to fulfil contractual obligations or pay a private debt. Any such deprivation of liberty would therefore lack a lawful basis and constitute a breach of Article 5 of the ECHR.

膠事就嚟,保守黨一直想搞British Bill of Rights, 但講果陣係講大咗 (The Conservative Party, 2014)

Put the text of the original Human Rights Convention into primary legislation. There is nothing wrong with that original document, which contains a sensible mix of checks and balances alongside the rights it sets out, and is a laudable statement of the principles for a modern democratic nation. We will not introduce new basic rights through this reform; our aim is restore common sense, and to tackle the misuse of the rights contained in the Convention.

我同意,ECHR本身係nothing wrong,但你UK Government is doing the wrong thing. 依家如果要Put the text of the original Human Rights Convention,Protocol No.4一定要放入去,即係會Ratify喇,咁BNA 1981同Hong Kong Act 1985即刻違憲要找數,所以由2014到依家,British Bill of Rights依然無聲氣。

所以,保守黨遲早要找數,退唔退歐盟都無關係,因為ECHR係歐洲國家就要簽,除非英國想繼續俾史特拉斯堡班法官折磨落去。

Reference List
European convention on human rights§ (2012)
The Conservative Party. (2014). PROTECTING HUMAN RIGHTS IN THE UK THE CONSERVATIVES’ PROPOSALS FOR CHANGING BRITAIN’S HUMAN RIGHTS LAWS. Retrieved 1 February 2016, from https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf
House of Lords. (2009). House of lords Hansard for 15 Jan 2009. House of lords Hansard for 15 Jan 2009 ( pt 1 ). Retrieved 1 February 2016, from http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90115w0003.htm

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