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In November, Britain takes over the chairmanship of the Council of Europe. Ken Clarke and Nick Clegg announced a few months ago that they will head a commission into the establishment of a British bill of rights in order to redefine the UK’s obligation under the European Convention on Human Rights. Separately, and presumably to sate the desires of the Tory faithful, a commission is to be set up to produce a distinctively Conservative position on the ECHR before the next general election.
Theresa May, full time home secretary and part-time shoe fetishist, gave a recent preview when in a now infamous recent Tory conference speech she argued for the abolition of the Human Rights Act and a new definition of article 8 (guaranteeing the right to a private and family life) of the European convention, in respect of family reunion policies for immigrants. She cited various ‘and I am not making this up’ examples including the now notorious Maya, a cat (which Ken Clarke described as a ‘laughable’ and ‘childlike’ example) who managed single-pawed to prevent a man’s deportation. As is clear, May it seems is quite happy wearing shoes made by third country nationals but less keen on allowing them into the UK in order to be with their families. The immigration ruling in the particular case she referred to makes clear the judge considered the dying father of the Bolivian student’s partner far more important than their joint ownership of Maya the cat in deciding the case. The officially unreported judgment which emerged last Thursday revealed the unnamed student, aged 33, had been living in a ‘strong relationship’ for four years with his gay partner who is settled in Britain
Human Rights legislation is of course a perennial bug bear of politicians and not just Tory ones. However Cameron has more form than most (see the 2008 David Cameron’s conference speech), lamenting that ‘human rights act culture that has infected every part of our life’. In recent months he has returned to this issue again and again, no doubt giving voice to the frustrations of cabinet ministers, MPs and his activist base, that European human rights legislation has overruled British courts and must be renegotiated. A European ruling earlier this year that prisoner’s must, in some form at least, be given the vote despite parliament voting for the opposite, infuriated an unholy trinity of Conservatives, right wing press and Jack Straw.
Cameron said recently: ‘Though it won’t be easy, though it will mean taking on parts of the establishment, I am determined we get a grip on the misrepresentation of human rights.’ He went on: ‘We are looking at creating our own British bill of rights. We are going to fight in Europe for changes to the way the European court works and we will fight to ensure people understand the real scope of these rights and do not use them as cover for rules or excuses that fly in the face of common sense.’
All this cacophony – to hear Cameron talk about ‘the establishment’ is quite amusing – does raise two fundamental questions around Human Rights legislation and its interpretation.
The first is whether, and if so how, and by whom, these rights are being misrepresented and secondly for what purpose.
As to the first, opinion surveys, contrary to what we are told (and Nick Clegg even in his recent affirmation of his party’s support for the HRA said rights had to be made more popular, show in fact overwhelming support for the rights in the HRA. A Liberty poll in December 2009 found that 96% of people believed it is important that there is a law that protects rights and freedoms in Britain.
Continuing to make human rights better understood and more widely valued is, of course, crucial. Any hope that this might come from real political leadership however is a non starter, given both the history of the HRA which was inadequately consulted upon when first proposed and even more weakly promoted (when Labour ministers like Blunkett weren’t directly undermining it), and the fact that it has been traduced and sniped at ever since coming into force in 2000.
However it is the second question which is perhaps even more fundamental. For it is in reality not the rights themselves that are contentious (after all few would argue surely about the need to prohibit inhuman and degrading treatment and torture) but rather who has access to them and when. It is this which has been the source of so much disquiet.
Fundamentally the question raised is whether there should be some sort of eligibility test for protection under human rights legislation – related to say ‘responsible behaviour’ – or should such protections apply to everyone who lives under the jurisdiction of the UK state? And if the answer to this question is that the whole point of human rights is that they belong to all human beings, in what circumstances should rights be limited and to what degree?
Jospeh Raz, the philosopher, said that ‘rights are grounds of duties in others’. In other words, a society that respects fundamental human rights can only be secured if we respect each other’s rights and freedoms, because otherwise, the whole concept is doomed at the outset. The HRA is actually one of a very few pieces of legislation that sets out clearly what in fact our basic rights as citizens are.
This does not mean, contrary to what its critics seek to argue, that such rights are absolute. Rights, even the ones supposedly justifying no exceptions or qualifications like the right to life, are not unfettered. They all have grey edges.
Nor are such rights the preserve of the ‘irredeemable’ and ‘irresponsible’. The test for limiting freedoms under the HRA, as in all modern bills of rights, lies in the need to take proportionate measures to prevent us doing harm to others or to protect the common good, rather than whether an individual belongs to a particular category of people (be it prisoner or battlefield soldier). Under this framework, rights are not contingent upon ‘good behaviour’, but rather are placed within the state’s overall responsibility to ensure that our liberties are not abused at others’ expense. This is the route to victims of crime claiming protection under the HRA as well as prisoners.
An example of how the Human Rights legislation operates within these legitimate tensions can be seen in the case of Robert Thompson and Jon Venables convicted of the Jamie Bulger killing. The European Court ruled in 1999 that the right to fair trial had been violated. However it was on very specific grounds. They reiterated that, ‘states have a duty under the convention to take measures for the protection of the public from violent crime’ and that ‘the convention’ did not ‘prohibit States from subjecting a child or young person convicted of a serious crime to an indeterminate sentence… where necessary for the protection of the public’. The violation was not because the sentence was too long, rather it was because the home secretary had fixed their tariff (or minimum time to be served) in detention rather than a judge. In the same way that public opinion must be an erroneous consideration when looking at sentencing and release decisions then politicians should also be removed from the equation. They consistently show themselves to be short-termist, neither independent nor impartial, given to making decisions simply to appease public opinion or interested groups rather than in the interest of justice and all that that entails.
Another example of how such rights are misrepresented can be seen in any analysis of the case law on human dignity. The principle of human dignity frequently manifests itself in a demand not necessarily for a substantive improvement in the situation of the claimant, but rather in a requirement that his or her wishes and the principle involved be more carefully heard by the authorities. A decision like that in P and Q involving the removal of babies from imprisoned mothers is an example of such a ruling. The Court of Appeal in that case insisted on the right of a mother to be heard, rather than on her entitlement to keep her baby with her.
So will the introduction of a bill of rights remedy a perceived responsibilities deficit in our society and, as its critics would argue, deal with the wrongs against society and not just the rights of their perpetrators?
Rights and responsibilities was of course Tony Blair’s mantra in the dying days of his premiership. He reiterated that ‘the civil liberties of the suspect’ were being put ‘first’ by the courts. This view is shared (and is certainly not the only similarity between the two) by Cameron whose main charge against the HRA is that it ‘has helped to create a culture of rights without responsibilities’.
However the HRA as we have seen already allows – indeed requires – rights to be limited in order to protect others and deter crime. Dominic Grieve has mooted the idea of ‘interpretation clauses’ in order ‘to provide for the better balancing of rights where the assertion of a right undermines the rights of others.’. This in his view would ‘give a more detailed guide consonant with our own legal and political traditions than does the ECHR text itself as to the weight to be given’ to each of the articles. Yet Grieve, purposefully or otherwise, ignores the fact that British judges are in fact already free from slavishly following the case law of the Strasbourg court where rights are not absolute. Nor does the government make clear how such ‘interpretation clauses’ might determine where the balance will be struck in terms of eligibility to protection under human rights legislation. We are not told who will lose out from such changes but there will be few prizes for guessing!
In practice a British Bill of Rights is unlikely to go beyond the symbolic. And in reality there is no need why the Conservatives (alongside Ukip and the BNP) feel it necessary to repeal the HRA given there is no shortage of models for a UK bill of rights that would leave the HRA intact or incorporate it wholesale.
The HRA should be seen for what it actually is, not as individual rights or personal entitlements standing alone, but as civil liberties and political freedoms, the building blocks of a democratic society. This is surely how we can at last begin to distinguish between reconciling human rights with the front page agendas of the Sun, Telegraph and Daily Mail. Making human rights better understood and appreciated, is to the ultimate benefit of us all.