It may seem odd, not to say a little reckless, to be defending an act so widely criticized by large parts of the British media and so many politicians, particularly those in the Conservative party. Indeed, such is the level of criticism in the press that it would be a brave politician who puts his head above the parapet to attempt to say something positive about it, Kenneth Clarke being one of the few.
There are many politicians who want to see it abolished including the Conservative member for Salisbury, John Glen. They would like to see a British bill of rights to replace the Human Rights Act (HRA) although quite what has happened to this is unclear but it has probably foundered because of Lib Dem opposition. Both Theresa May, the Home Secretary and Chris Grayling the Justice Secretary, are committed to repealing the act if re-elected in 2015.
The criticisms come in varying forms but they include statements that it is a ‘charter for criminals’, that we are subject to ‘European diktats’, that it makes it harder to ‘keep our country safe’ (David Cameron), and that we cannot deport foreign criminals and terrorists. There are also stories – many of them made up or are a wilful distortion of the truth, such as a mass murderer wanting pornography in his cell because it was his ‘human right’ (it isn’t and he didn’t) or a violent man demanding a burger before coming out of a house (likewise). In that case the police bought him a burger as part of the negotiating strategy and it was nothing to do with HRA.
In all this tirade of criticism the facts almost get lost. It is also hard to recall that it was a conservative politician, Sir Winston Churchill who, after the war was keen to see a convention established and that it was an Englishman Sir David Maxwell-Fyfe, with a French colleague, who put together the original act which was completed in 1950 by the then newly formed Council of Europe, and came into force in 1953. It was their desire to see an end to the horrors seen in the war by establishing the rule of law in Europe. Key influences in drafting the convention were the Magna Carta (whose 800th anniversary we are to celebrate in 2015), the 1689 Bill of Rights and habeas corpus.
When reading the HRA, what surprises most readers is how benign and self-evidently beneficial it is. It says for example, that torture or other cruel and unusual punishments should not be used; that people should know of what they are charged; that people have the right to a lawyer; a right to a fair trial; that there should be no slavery or servitude, and there should be freedom of thought, conscience and religion. Indeed politicians are asked which of these they object to and in what way the proposed bill of rights would be different, they are strangely silent. This question was posed to Mr Glen in the Salisbury Journal and there was no answer from him.
The critics hold sway because no serious attempt has been made to explain it to the general public. There has been no attempt at all, by any political party, to set out the benefits of the act either in this country or in other countries in the EU. Instead, a general dislike of any and all things European sets the tone for the debate, if debate is in fact what we get. Because there is no positive argument, the nay sayers and critics are free to expound their beliefs largely unopposed. The recent head to head debates between Nigel Farage and Nick Clegg revealed what a hard job the latter had in convincing his audience of the benefits of being in the European Union. The polls suggested he lost heavily. Although they weren’t discussing the HRA, it is bound up with all things Europe and hence a bad thing.
So what are the advantages? The most important one of all is that the HRA protects everyone’s human rights whatever their age or whether they are rich or poor. A key feature of the act is this emphasis on individual rights against state power. There is very little in our laws or constitution which protects free speech, the right of protest, privacy or non-discrimination. In some countries these provisions are of considerable importance where the police or the state wield immense power against the individual and the court system is either corrupt or ineffective. These rights are enshrined in the HRA. Up until it became law in this country, individuals had to go the Strasbourg to get justice. Now that it is part of our law that is no longer necessary.
The European court has had most beneficial effect in Europe and in former Soviet republics. In Greece and Italy for example the court is trying to improve the enormous lengths of time the legal processes take there. In Russia there has been a sea change in the legal processes and references to the European court are testimony to improvements taking place.
It is Russia and currently the Ukraine which is particularly interesting. Both are in the news at present with the Crimea and, from time to time, the issue of human rights has been mentioned. In an earlier conflict in Chechnya, Russia was accused of using excessive force and there were accusations of disappearances, the use of torture and extrajudicial detention. Initially, Russia refused to accept any findings against them, but at the end of last year, there has been a slow change and it has accepted the European court’s ruling in some cases. The improvements are small but are beginning to happen and observers say that although more needs to be done, without the court it could be much, much worse.
In amongst the frequent criticism of the HRA and threats to abolish it by Teresa May, Chris Grayling and echoed by our own MP, it is odd to read a different interpretation by the Home Office and the Foreign Secretary, William Hague. This is a policy statement from the FCO:
The Human Rights and Democracy Programme (HRDP) is the Foreign and Commonwealth Office’s dedicated fund supporting human rights and democracy work overseas. The Programme aims to make a difference to people’s lives, helping to build the capacity of governments and civil society to promote and protect human rights. In 2012/13, we supported over 70 projects worldwide.
Human rights, democracy and the rule of law are at the heart of the Government’s foreign policy. The HRDP targets areas that are both important to us and where we consider we can make the greatest impact in delivering the FCO’s overarching purpose to “pursue an active and activist foreign policy, working with other countries and strengthening the rules-based international system in support of our values. FCO’s web site
The last sentence here is most relevant and it is hard to reconcile this policy statement with other ministers’ statements. We are not talking of differences within the coalition here as all the relevant individuals are conservative MPs. If we repeal the act it is hard to see how its principles can be used by the FCO in its foreign policy.
The FCO clearly sees that in an international context promoting the values enshrined in the European Convention are central to establishing a stable world order. The rights we take for granted are not always taken for granted in foreign or even some European countries.
Indeed, many of our partners are alarmed at both the political and media campaign against the act. The United Kingdom’s desire to pull out is particularly alarming since we are regarded as one of the ‘good guys’ as far as legal process is concerned and as the key architect of the act in the first place, it would send a truly negative message to the rest of world and Europe. The right of a suspect to have a lawyer present while being interviewed by the police, is well established here but is still a rarity in other countries.
Why the hostility?
The question has to be asked why is it that so many politicians and significant parts of the media are so opposed the HRA? It is not an easy question to answer. In part it is a fear and distaste for immigrants and immigration generally. When the restrictions on Romanians and Bulgarians coming into the country were lifted at the end of last year, there was a concerted campaign in the tabloid press with scare stories of ‘floods’ of Romanians reportedly about to enter the country. They were allegedly coming here for the benefits or to get access to better health provision. Thousands if not tens of thousands were expected. The story rather fizzled out when journalists and some politicians turned up at Stansted airport to greet the expected multitude to find, well, just two. That’s 2 as in 1, 2, 3, not two thousand, two hundred thousand or 2 million.
Reliable studies have shown that immigrants have a net beneficial benefit to our society and economy. If a strike of immigrants were a possibility then large parts of our society and industry would quickly be in trouble. Hospitals would cease to function, care homes would shut, the food industry would struggle and food shelves in supermarkets would quickly empty. This is not an essay on immigration but the constant negative stereotyping of immigrants plays into the political and human rights story. They are here to work and being young they have little need of the health service. The beneficial effects seldom get a voice unfortunately.
The second argument is that of sovereignty. This is based on the idea that because the people elect a parliament via the ballot box then they are allegedly in control of our affairs. The ‘unelected bureaucrats in Brussels,’ (or Strasbourg) to quote a well-worn phrase, are interfering with our affairs and we want less of it and them. We need to get this power back so that ‘we’ the people of the United Kingdom are back in control.
The argument over sovereignty has some problems however. The first is that the people have very little actual say over how the country is run. Corporate interests – either directly or through a large army of lobbyists – have much greater influence. Plain packaging of tobacco products (now likely to happen) and excessive sugar in our diet are both recent examples where commercial lobbying might have been the deciding factor not the health of the nation or what ordinary people want. Media moguls – again either directly, or through their media interests – wield enormous power and influence. The idea that once we come out of Europe we the people will in sole charge of our affairs is on very thin ground.
It is also paradoxical that with all this concern for sovereignty, very little has been said by the same politicians about the penetration of our electronic mail and mobile phone messages by GCHQ and NSA in America. The HRA gives us a right to privacy and this is, and has been, comprehensively breached by electronic surveillance. Initially it was claimed that there was adequate oversight. This argument quickly melted away. The ‘you have nothing to fear if you have done nothing wrong’ argument was also trotted out. Sir Malcolm Rifkind quickly looked silly claiming that his committee was fully in charge of the situation when so clearly they had been sidelined. But whereas politicians speak readily about any Brussels inspired infringement of liberty they are deafeningly silent about the comprehensive intrusion into all our electronic communications by the security services.
It is politics where the real answer may lie. And a key factor here was the election in Eastleigh where the Conservatives came third to Ukip. This shook the party and the rhetoric against the act – and against the EU generally – gained traction. The debates between Nigel Farage and Nick Clegg are further evidence that the anti–EU message is simple and strong and goes down well with large sections of the electorate. The failure of politicians from all parts of the spectrum to address this is coming home to roost.
Perhaps another reason lies behind this and concerns the fundamental nature of the HRA which is about giving power to the individual. For the first time, individuals have the power to hold the state in its various forms to account and this is arguably why it is so disliked by some politicians. It is this shift in power to enable an ordinary citizen to take on a corporation or the state and to use fundamental rights to do so, shakes the status quo.
The HRA has been a force for good in this country despite its imperfections and it should be defended.
Why is the European court of human rights so hated by the UK right? John Henley Guardian 22 December 2013
Big changes to Human Rights or not? HRLA.co.uk April 2012
Human Rights Act myths Liberty, [accessed 17/01/2014]
Right to a fair trial (removal to Jordan) – Othman (aka Abu Qatada) Hansard HC Deb 17 April 2012 c173)
Six questions for Chris Grayling on human rights New Statesman 1 October 2013 [accessed 21 January 2014]
Judges would regret Human Rights Act repeal Joshua Rozenberg Guardian 14 March 2013
Human rights are good for Britons – and the Tories know that Natalie Samarasinghe Guardian 10 March 2013
Counter-Interpretation, Constitutional Design, and the Right to Family Life: How the Conservatives Learned to Stop worrying and Love the HRA (Briefly) Joshua Braver UK Constitutional Law Association 6 January 2014
Theresa May’s assault on the right to family life ignores a complex reality Julian Norman Guardian 30 September 2013
Also Amnesty UK.