Talk organised by the Romsey group
An element of the desire of those who wish for the UK to come out of Europe is a wish to regain our (i.e. the UK’s) sovereignty. There is also a desire, expressed most strongly by some members of the Conservative Party, to abolish the Human Rights Act and replace it with a British Bill of Rights. This has been promised in the party’s manifestos and has been talked about for about a decade but details of what the BBoR will look like and how it will differ from the existing HRA is still largely opaque. It seems to be a solution in search of a problem.
The Conservatives are not alone in wanting us to come out of the European Convention along with Brexit: most of the media have kept up a barrage of criticism and denigration of the Court and all its doings. As the example on the right of the Daily Mail shows, there is talk of a ‘triumphant week for British values,’ the ‘crazy decision’ making by European Court judges – usually referred as ‘unelected’ judges and the ‘human rights farce’.
Claire Lugarre explained some of the background issues surrounding the issue of the European Court and what it might mean for the country if we left.
Her first point is that the notion of human rights is not just a western construct and similar ideas are seen throughout history even if they were actually called that at the time. She also emphasised that the European Convention on Human Rights (ECHR) had a utilitarian purpose not just a moral one. There was an urgent desire after the carnage of WWII to construct a legal basis of good behaviour between states.
States have to comply with European Court judgements. The Human Rights Act – often referred to by critics as ‘Labour’s’ Human Rights Act which it isn’t as it received all party support – incorporates the ECHR into British law thus removing the need for litigants to go to Strasbourg to get justice.
One matter is the vexed question of prisoner voting she said. The European Court rejected the Government’s case which banned all prisoner voting and said that to ‘prescribe general, indefinite and automatic deprivation of a right to vote’ infringed a prisoner’s article 3 rights. Thus far the government has ignored the ruling. The issue was one of proportionality.
She spent some time on the often confusing difference between the Council of Europe and the European Union the latter being what we wish to leave (it was announced yesterday that the Article 50 notice to depart will be served on 29th of this month). The Council of Europe consists of 47 states and within which the European Court sits. This deals with human rights issues. The European Union consists – at present – of 28 states and is a political and economic union. There seem to be many who think that Article 50 means we will no longer be subject to ‘crazy decisions’ of the European Court. To do that we have to leave the European Convention. There have been reports that the prime minister Theresa May wishes to do that as well.
All legislation and legal judgements have to be in accordance with the HRA she said. Indeed, the number of judgements already made by the courts represent a considerable body of precedent based on the HRA and the European Court. Even if we come out of the European Convention the effects will be present for a considerable period. It is also forgotten that the European Court is not the only thing which binds us, we are also signatories to a host of other treaties which will still be in existence.
One of the arguments frequently heard is that it is not just about rights but also about responsibilities. It was this principle which led to the desire to have a British Bill of Rights and Responsibilities. This is a difficult argument to fathom. Sometimes, people talk about responsibilities in terms of the government’s responsibilities to its citizens to uphold the Act. Others argue that the citizen has responsibilities not just rights. There are other arguments about the need to fight terrorism because the act has undermined this ability, it is claimed, and this requires responsibilities in some ill-defined way. Claire was unclear what the BBoR would contain.
The relationship between rights and responsibilities needs to be understood. Most rights are qualified in any event and, in practical terms, depend on the responsibility of everyone in society to respect one another’s freedoms (so that one party’s right to free expression, for example, does not impinge too far on another’s right to a private and family life). These rights cannot be subjected to any all-encompassing limitation, such as that they are legally contingent on performance of set of duties and responsibilities. Their application regardless of such considerations is precisely the point of their existence.
It is often claimed by critics that the European Court was ‘imposed’ on the UK. It wasn’t and the UK was a key participant in its formation after the war with many British lawyers involved. It is also argued that the HRA should only be used for the most serious of cases but what this would mean in practice is not clear. Who would decide on seriousness?
If, as is threatened, we do come out of the European Convention the effects could be traumatic. At present countries like Russia and Turkey are part of it. Russia’s human rights record is already poor and Turkey has arrested tens of thousands of judges, lawyers, academics and police. If the UK pulls out of the Convention, of which it was a founder member, the effects could be even more serious in those countries.
The HRA has had a steady and beneficial effect on many people’s lives in this country. In countless day to day decisions by authorities of various kinds, its provisions have to be adhered to and lawyers regularly use it to defend their client’s interests. Perhaps its chief problem is that it shifts some power down to the individual, a fact which those who were in control find uncomfortable.
This was a most interesting evening about a subject which is bound to be in the news for some time to come.
Follow us on Twitter and Facebook – salisburyai
If you would like to join the Salisbury group you would be very welcome. We meet once a month for a planning meeting and perhaps the best thing is to come along to an event and make yourself known.