I haven’t written a proper blog post in ages, tending to just rely on Twitter… it’s easy, and I’m lazy. Writing a full, proper blog post takes more time, and I can rarely be bothered nowadays.
I did plan on writing one last week, based upon the Election and the subsequent Tory / Lib Dem Coalition… it was half done (based mainly upon forum posts I made last week… I spend time writing those, why not blog entries?), but I didn’t finish it, and, well, the time has gone.
This week though has seen another issue which has actually spurred me to write a blog post (albeit also a partial re-write of another recent forum post!): The Human Rights Act 1998 (HRA).
The Tories went into the recent election campaign continuing their earlier promise to repeal the Human Rights Act and replace it with a “British Bill of Rights”.
The Lib Dems, of course, are absolutely opposed to any attempt to repeal the HRA (a stance I wholeheartedly agree with – and have done since long before I joined the Lib Dems at the start of April).
And now the two parties are together in Government as a Coalition…
The recent ruling by the Secret Special Immigration Appeals Commission (SIAC) that two terror suspects could not be deported back to Pakistan, due to fears that they may face torture or death back home, has brought the HRA into the news again.
The men in question were alleged to have been involved in an al-Qaeda bomb plot, but of course due to the way SIAC works, the evidence was presented to SIAC in secret, and the defence were not even able to see the evidence, let alone have an opportunity to challenge it. Neither man had actually been convicted of any criminal offence, nor even charged with one. Craig Murray, a human rights activist and former British Ambassador to Uzbekistan, has written a very good blog post about it: “First Islamophobic Terror Scare under the Coalition”
Anyway. The HRA. Something I see time and time again, which really winds me up, is when people claim that the HRA is a case of the EU (or the more generic “Europe”, which of course is still meant to suggest the EU) “forcing all this human rights nonsense on good old Blighty!” etc. etc. People moan that Europe is trampling all over us, making us suffer all these nasty “human rights” and so forth (nasty indeed, I mean, I really do ever so hate the idea of the Right to a Fair Trial, Freedom of Expression, etc…)
And it is not just a large part of the public which appears to me to be a little misinformed regarding the HRA… there are elements in the Press which do not quite seem to get it either. [And not just in failing to grasp that it has nothing to do with the EU, but also what appears to be inaccurate reporting in many stories regarding use / misuse of the HRA[1]…which of course feeds back into public ignorance/dislike of the HRA/ECHR]
Only on Wednesday, I read an article in The Times (an interview with Lib Dem leader and Deputy PM Nick Clegg), in which the writer of the article (Roland Watson, Political Editor) said “On the other he [Clegg] sets ambitions for the Lib-Con coalition that are anathema to most Tories…retaining the Human Rights Act, a piece of Brussels-inspired legislation that brings out most Tories in a rash.”
However, the HRA is not, in fact, “Brussels-inspired”.
Now, although some people seem to think it’s an example of those “pesky foreigners” in Europe “forcing their rights on the UK”, it is actually more a case of the UK exporting its traditional rights to Europe, given the history of the European Convention on Human Rights.
The Human Rights Act 1998 incorporated the European Convention on Human Rights into British Law.
The HRA enables people to go to court in the UK to seek redress regarding breaches of the Convention. Before the HRA, the only choice people had was to take a case before the European Court of Human Rights in Strasbourg (very costly in both time & money). The HRA also means that public bodies in the UK must not act in a way which is incompatible with the Convention (unless prevented by an Act of Parliament). It means that Judges must take into account the decisions of the European Court of Human Rights, and that they must try and interpret legislation in a way which is compatible with the Convention. Parliament remains sovereign, however, and it is not possible for a judge to strike down an Act of Parliament.
The European Court of Human Rights, the European Convention on Human Rights that the Court enforces, and the Council of Europe that they are both a part of, are not part of the European Union.
They were created in the aftermath of WWII, as a bulwark against tyranny, and a means of protecting people against abuses by the State.
One of their early champions was that well known tree-hugging pinko-commie liberal do-gooder Conservative Prime Minister Sir Winston Churchill. This really is a very good read: “Churchill’s Legacy: The Conservative case for the Human Rights Act”. While this article at the British Library has some good info too.
The Convention was primarily drafted by British legal experts, incorporating many traditionally British fundamental rights and freedoms, such as habeas corpus, the right to a fair trial, the prohibition of cruel and unusual punishment, etc. etc. Its inspirations included, amongst others, the Magna Carta and the English Bill of Rights 1689.
The man who oversaw the drafting of the Convention was Sir David Maxwell Fyfe, a lawyer, judge, and Conservative MP. As well as serving in various roles in Government (as Solicitor General, Attorney General and later – as Viscount Kilmuir – Lord Chancellor), he had also been Britain’s day to day chief prosecutor at the Nuremberg Trials.
The Convention was signed in 1950, the UK ratified it in 1951 (the first country to do so), and it entered into force in 1953.
If, for some bizarre reason, the Government did repeal the HRA, the UK would still be party to the Convention… but people would then have to go through the expense in time and money to go to the Court in Strasbourg, to have their cases heard by mostly European judges, instead of having their cases heard by British judges in the UK (so probably not the outcome the Eurosceptics would really want surely?). Leaving the Convention itself would in my lay opinion be madness and just plain wrong.
Luckily, despite the current fuss, it does hopefully seem that the Tories in the Government are not going to try and get rid of it any time soon… they surely know the Coalition would fall if they did. Home Secretary Theresa May has said that the Government is reconsidering the Tory promise to scrap the HRA, while apparently Ken Clarke (Justice Secretary / Lord Chancellor) and Dominic Grieve (Attorney General) are against withdrawal from the Convention and are not keen on scrapping the HRA. A commission will be looking at the issue… which is hopefully just a way of keeping it out of the way.
As far as I am concerned, the Human Rights Act 1998 is a British Bill of Rights, and I believe that the HRA & ECHR are British creations we should all be be proud of.
[IANAL, etc. etc.]
—————————————————————————————-
[1] – Certain sections of the press seem to print stories which are, at best, “inaccurate” regarding the HRA/ECHR…
e.g. The Sun had a story claiming that Serial killer Dennis Nilsen allegedly used the Human Rights Act to enable him to obtain “hardcore gay porn” while in prison. Turned out to be utter rubbish…
DENNIS NILSEN
SERIAL killer Dennis Nilsen, 60, received hardcore gay porn in jail thanks to human rights laws.
He argued it was his ‘right to information and freedom of expression’ in 2002. The Prison Service agreed to allow that right to Nilsen, convicted of killing six young men in 1983.
And the actual facts…
Department for Constitutional Affairs: Review of the Implementation of the Human Rights Act
Section 4 “Myths & Misperceptions” (pages 29-34)
- The Human Rights Act has been widely misunderstood by the public, and has sometimes been misapplied in a number of settings.
- Deficiencies in training and guidance have led to an imbalance whereby too much attention has paid to individual rights at the expense of the interests of the wider community.
- This process has been fuelled by a number of damaging myths about human rights which have taken root in the popular imagination.
There are three different types of myth in play. First, there are those which derive from the reporting (and often partial reporting) of the launch of cases but not their ultimate outcomes. These leave the impression in the public mind that a wide range of claims are successful when in fact they are not – and have often effectively been laughed out of court. Secondly, there are the pure urban myths: instances of situations in which someone (often it may not even be clear who) has said that human rights require some bizarre outcome or other, and this is subsequently trotted out as established fact. Finally, there are rumours and impressions which take root through a particular case or decision, and which then provide the backdrop against which all subsequent issues of the type in question are played out.
Cases never brought
Dennis Nilsen was sentenced to life in prison in 1983 for multiple murders. In an application for judicial review in 2001, he sought inter alia to challenge a decision of the Prisoner Governor, under the Prison Rules, to deny him access to a book containing gay artwork and depictions of male nudity, and uncensored access to a mainstream top-shelf gay magazine. He alleged that the decision constituted “inhuman or degrading treatment” contrary to Article 3 of the Convention rights, or in the alternative was discrimination against gay men under Article 14 of the Convention rights when read with Article 3.
Dennis Nilsen’s application was refused by the single judge at the permission stage. He did not establish that there was any arguable case that a breach of his human rights had occurred, nor that the prison’s rules were discriminatory. He also failed to receive any greater access to such materials as a result. The failure of his application at the first hurdle was not widely reported, nor his further failure on renewal. On the contrary, the case is now often cited as the leading example of a bad decision made as a result of the Human Rights Act, with the Shadow Home Secretary himself asserting that Dennis Nilsen had been able to obtain hard-core pornography in prison by citing his “right to information and freedom of expression” under the Act.(7)
(7) Daily Telegraph, 17 August 2004, “Tories target human rights”
So, even though Nilsen failed at “the first hurdle” (and every subsequent hurdle) to use the HRA to obtain “access to a book containing gay artwork and depictions of male nudity, and uncensored access to a mainstream top-shelf gay magazine” (rather than “OMG! Hardcore gay porn!!!”), certain sections of the Press somehow reported it as a successful victory, which conveniently supported their apparent anti-HRA stance.
The above linked report is a very interesting read, with many examples.