Category: ECHR

The European Court


Seminar asking ‘what’s at stake?’ with the threat to leave the European Court

May 2024

Following the last minute reprieve last year by the European Court for the asylum seekers on their way to be deported to Rwanda, many politicians and a large section of the media are campaigning for Britain to leave the jurisdiction of the Court and resign from the European Council. The MP for Devizes, Danny Kruger, is a prominent member of this group. It has become a political issue, one likely to crop up in the current election. This webinar by the European Movement UK discussed the history of the court and the institution and what some of the implications might be if we did leave.

The Court has been subject to much abuse and is generally and disparagingly referred to as a ‘foreign court’ and together with Strasbourg, has almost become a term of abuse. Although nothing to do with the EU which Britain has left, it is confused with that entity and it is possible that many people thought that when we left the EU we had left all things European including the Court.

The webinar started with some history including the key fact that it was Britain and in particular Winston Churchill, who were instrumental in getting the European Council established at the Treaty of London after the war. The UK was the first country to ratify the treaty. It is an irony that it was Conservatives who led the way in the post-war years yet it is members of the same party who are now keen to see us depart.

From the rhetoric and press reporting one might gain the impression that the Court is a regular thorn in the exercise of law in this country and frequently interfering in the exercise of justice. The reality is quite the opposite. The UK has the lowest number of applications and out of 38,000 applications from member states in 2023, only 176 relate to the UK. There have been 3 judgements and one violation. There are issues still outstanding concerning Northern Ireland however. The main point being made was that on the whole, the UK has a reasonable judicial system and most matters are resolved within the country without need to go to Strasbourg.

As far as being a ‘foreign court’, only France has more nationals working there and the British presence is strong and influential.

False promise

Another speaker referred to the main reason for the current desire to leave is the Rwanda issue. The promise of leaving the jurisdiction of the Court overlooks other conventions we have signed up to including the Refugee Convention. The consequences of us leaving were discussed and these included the negative effects on human rights in the UK if the ultimate backstop was removed. There will be consequences for the Good Friday agreement in Northern Ireland. It will undermine UK’s standing in the world as a country which stands by its international agreements. It will reduce our influence, which, as already mentioned, is considerable.

Dominic Grieve, the final speaker, said it ‘has been the best example of soft-power exercised by the UK since the second world war’. He repeated that the UK was hardly ever in violation. The Court had brought about positive change for example by overturning the decision by a local authority to house an elderly couple in separate care homes brought about by the family life provision in the Convention. He noted that the obsession by some politicians was not reflected by the public at large.

Success

The success of the Court in the post war world should be a matter of celebration rather than the subject of 15 years of denigration. Recent government legislation to inhibit demonstrations and the actions of judges in preventing protestors explaining why they were protesting are examples of how fragile our rights are. The combination of government laws, increased police powers, media disinformation around human rights and demonising protestors as ‘rioters’ and ‘eco-zealots,’ has cast a chilling effect over attempts to bring concerns to public attention via protests. It is forgotten that a huge range of social reforms have almost always resulted from protest. It will be interesting to see what appears in the parties’ election manifestos on this subject.

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Hugh Grant settles


Hugh Grant settles his privacy action against NGN

April 2024

The actor Hugh Grant has finally agreed to settle his case against NGN, the Murdoch owned group and publishers of the Sun newspaper. The accusations involved phone hacking, unlawful information gathering, landline phone tapping, bugging his phone, burgling his home and office and blagging medical records. This activity, carried on on an industrial scale not just against Hugh Grant but a host of other celebrities, sports stars and politicians, is described in detail in Nick Davies’ book Hack Attack (Chatto & Windus, 2014) following years of investigation by him. The book describes in detail the failure of the media, parliament and the police to tackle the flagrant abuse of power by a media baron in the pursuit of newspaper sales.

The need to settle is another example of the failure of the British Judicial system to achieve justice and a hearing of the allegations in open court. The potential risk to Grant, even if he won his case, would be around £10m because if the damages were less than what NGN have paid into court, he would be liable to both side’s costs. He has won substantial damages which go along the £51m already paid in 2023 in settlements to keep the activity from being aired in court. The group is thought to have paid around £1bn to keep this out of the courts.

The interest from a human rights perspective, apart from the lack of justice and the abuse of power, is the light it shines on the right wing press and their campaigns to end the Human Rights Act and to come out of the ECHR. This is discussed in detail in Francesca Klug’s book A Magna Carta for all Humanity (Routledge, 2015, chapter 5). She points out that prior to the HRA coming into force, ‘our only remedy against press intrusion were torts such as breach of confidence, libel or malicious falsehood, none of which protected us from long-lens cameras or door-stepping journalists’ (p265). The ‘somewhat inflated’ boasts about the wonders of common law, privacy was not a principle it recognised.

Nick Davies was a journalist on the Guardian and it was that newspaper which the Metropolitan Police – senior officers of which has accepted large sums from the Sun for articles that were never published and whose officers revealed and sold confidential information to the hackers – attempted to prosecute the newspaper to get them to reveal their sources. Despite the scale of the wrongdoing, unbelievably, this was the only attempted prosecution. It was the HRA which played a part in stymying that attempt because again, the common law does not protect journalists and their sources.

As we pointed out in a previous post concerning anniversary of the Hillsborough tragedy, and the current arguments concerning Rwanda and the proposed deportation of the boat people, there are still politicians who wax lyrical about the Common law despite its many defects and the sometimes egregious failings of our judicial system to protect the innocent, the powerless and the victims. They argue, with plentiful support from sections of the media, that we do not need a foreign court to protect our rights and secure justice. Yet this case is yet another example where, despite the payment of a massive sum to Hugh Grant, the justice system failed and continues to fail and that it was and is the HRA and ECHR which are crucial weapons victims can use to achieve at least a smidgeon of justice.

The Salisbury group was established 50 years ago this year
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Hillsborough


Today, 15 April 2024, is the 35th anniversary of the tragedy

April 2024

Thirty five years ago today, 97 people died at the Leppings Lane end of Hillsborough stadium during an FA Cup semi-final between Liverpool and Nottingham Forest. Once the immediate shock of the death toll had passed, much of the media and South Yorkshire police put the blame on the supporters and in particular those from Liverpool for the tragedy. This blame became the standard narrative and was part of the judicial narrative as well. Plentiful lies were told and a headline in the Sun newspaper has meant the paper is no longer sold in Liverpool to this day.

The copious lies told by the police meant inquests were thoroughly unsatisfactory and the families of those who died spent decades in an attempt to get justice. Why it has appeared on this site is because justice was not achieved until the right to life provisions in the European Convention on Human Rights, now part of UK law, came into force. That, together with funding support, meant the police could be cross questioned and a jury returned a verdict of unlawful killing. Previous poor decisions by judges and a coroner were overturned. A report by the Hillsborough Independent Panel said:

“The disclosed documents show that multiple factors were responsible for the deaths of the
96 victims of the Hillsborough tragedy and that the fans were not the cause of the disaster.
The disclosed documents show that the bereaved families met a series of obstacles in their
search for justice“.

Today, in the light of the government’s desire to deport refugees to Rwanda – a final decision on which might be made in parliament this very week – will find that it is in direct conflict with ECHR. The Conservatives are divided on this and some, like local Devizes MP Danny Kruger, do not believe we need the court and object to Strasbourg effectively overriding our judicial system. He and others believe our system of justice based on the Common Law is sufficient protection. The prime minister Rishi Sunak in a recent statement believes that controlling immigration is more important than ‘membership of a foreign court’.

Common law, or indeed any law at all, did not save the Hillsborough families the decades of distress, dire judicial decisions, police lies and media denigration they have had to endure. The judicial system also failed to make anyone accountable for the wrongdoing and bad decisions which led to the disaster. It is interesting in researching this post and looking at the reports of the anniversary, how little or no mention is made of the ECHR in the the right-wing papers. Yet it was crucial in achieving justice for the families. Mr Kruger and others have a rosy view of our justice system despite what Conor Gearty refers to in a discussion of a succession of miscarriages of justice in his book On Fantasy Island*, ‘The role of judges in all this was either passive legitimisers of state abuse or – more scandalously – as drivers of wrong convictions in the first place’ (p40). He goes on to refer to how they seem somewhat impervious to ‘a succession of judicial debacles’ (ibid).

Hillsborough showed conclusively that we need the protections of the ECHR since our own legal system so often fails to offer protection to the ordinary citizen.

*Oxford University Press, 2016

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Supreme Court decision – Rwanda


Supreme Court declares government’s Rwanda plan ‘unlawful’

November 2023

This morning, 15 November, the Supreme Court in the UK gave its unanimous decision on the government’s plan to send asylum seekers to Rwanda, declaring it unlawful. This puts a flagship policy in jeopardy and it is not clear what will happen next. Huge political capital has been vested in this decision and it had massive, if totemic, significance for the government. One of its motivations was that it would act as a deterrent to the huge numbers crossing the Channel in small boats, something it was never likely to do.

The first flight was planned in June this year and it was due to take off from Boscombe Down airfield (pictured) in Wiltshire just a mile or so from where this post is being written. At the last moment, the European Court ruled it unlawful and the aircraft took off empty the following day.

The court’s decision was based on the human rights situation in Rwanda. The key principle is refoulement: that someone should not be sent back to their country of origin if there is a risk of mistreatment. The situation in Rwanda is poor with extrajudicial killings, use of torture and enforced disappearances a regular feature. The court also took into account that individuals from Yemen, Syria and Afghanistan have all been returned to their home country where they will be at severe risk of mistreatment or death. Other individuals have been clandestinely moved out of the country.

This decision and the whole vexed story of immigration, refugees, the boat crossings, use of hotels and related issues is extremely high profile in the UK. Considerable anger is expressed by many on the subject and it is a regular source of hostile front pages of the tabloid press and outlets such as GB News. It is said to be as a result of the public’s anger on the subject but this is not altogether true. Many it is true, are angry and want the government to deport the boat people forthwith. Other views are more nuanced. It is not always clear whether the ceaseless headlines on the subject and the somewhat one-sided treatment is itself stimulating the public to its hostile attitudes.

This decision, and the previous one to halt the flight in June, will add to those in the Conservative party who have been seeking our departure from the European Convention. This was a threat expressed by the previous Home Secretary who lost her post on Monday. However, the court made clear that it wasn’t just the European Convention that was the key law in this regard. They pointed out there were other aspects of law, as well as international treaties which the UK has signed, all of which had a bearing on the question of refoulement. This has not prevented – in the words of Open Democracy – the ‘marginally less deranged’ members of parliament who are calling for us to abandon all international covenants. One such is Danny Kruger the member for Devizes in Wiltshire, another is the deputy chair of the party Lee Anderson.

It is important to recognise that the court ruled that the policy of deporting asylum seekers is not unlawful. What was at issue was the human rights in Rwanda itself. So the policy lives on and the Prime Minister Rishi Sunak said in the Commons today that he was willing to “revisit domestic legal frameworks” in their desire to pursue this policy. This might mean the Human Rights Act (one of the acts the high court referred to) comes under attack again, a long time goal of the Conservative Party.

Such is the level of political capital involved in this issue and its place in the Prime Minister’s five priorities that they cannot allow it to go away quietly. We will have to see what emerges in the coming days and weeks. If the decision to remove ourselves from the aegis of the European Court, that will be a retrograde step. We will have to leave the Council of Europe, it will weaken our voice internationally and will hinder our efforts at improving the rule of law around the world.

Photo: Boscombe Down. Salisbury Amnesty

UPDATE: Prime Minister announces they will conclude a new treaty with Rwanda which will override the Supreme Court decision (which he does not agree with) and will enable refugees to be sent there.

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Human rights laws ‘protecting terrorists’


Previous minister of Defence Ben Wallace protests at the ‘lunacy’ of rules such as ECHR
September 2023

Ben Wallace, the former Defence Secretary, has a piece on the front page of today’s Daily Telegraph (13 September 2023) under the headline “Wallace: Human rights laws protecting terrorists” written by Isabel Oakeshott and Daniel Martin.  The sub heading is “Ex-minister attacks ‘lunacy’ of rules such as the ECHR that block rendition of suspects’. 

He claims that human rights laws including the ECHR have become a serious risk to national security and are thwarting efforts to stop terrorists.  The two main reasons the ex-minister gives are that one, they are unable to kill individuals, usually by drone and two, we are unable to render people across borders or arrest people in countries whose police forces are unacceptable, means that we are more often than not forced into taking lethal action than actually raiding and detaining.  He says we are unable to carry out raids such as the US did to kill Osama bin Laden. 

It is an extraordinary article for a senior politician to have agreed to appear in a national newspaper.  Firstly, it is of a piece with a decade of fairly relentless attacks on the Human Rights Act (HRA) and the various promises to abolish or rewrite it which never seem to appear.  The benefits of the act for ordinary people in their quest of justice against the state does not get a mention. 

But the truly extraordinary part of it is the clear statement about wanting to murder people in a foreign country as a form of foreign policy.  We are quick to condemn foreign states such as Russia who attempted to murder a man in Salisbury for example, but seemingly, it is perfectly OK for us to murder a suspected terrorist in a foreign land.  In any event, how certain are we that the proposed victim is a terrorist and is plotting to carry out an attack here?  Last week, a suspected terrorist escaped Wandsworth prison and stayed away for 4 days with the finest of our security and police forces combing the country for him and with his photo on the front pages of our newspapers. In the events leading up to the Iraq war, our government and their security advisers were telling us that Sadam Hussein was developing nuclear weapons evidence of which was never found.

How certain can we be therefore that an attempt to murder a suspected terrorist in a foreign land would be successful in finding and killing the right person? Terrorist take great pains not to carry mobile phones and regularly move around. What about deaths of family members and possibly children?

There is also the moral point.  We are a member of the UN’s Security Council and as such, we should be promoting the law abiding behaviour in our and other’s international relations.  It is true that this is frequently ignored by a variety of nations, nevertheless, it would be difficult for us to adopt the high moral ground if we go around the world killing suspected terrorists ‘plotting against Briton’.

The article is full of dubious reasoning and bellicosity.  “Somalia may say you can blow up al-Shabab” he writes “because they’re our enemy as well, but if we go in and they surrender, we get told their detention pathway isn’t compliant [with ECHR law]. It’s a ridiculous catch-22 position, which doesn’t reflect the threat”.     

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The curious thinking of Danny Kruger MP


Danny Kruger is the MP for Devizes in Wiltshire

April 2023

UPDATE: 6 July 2024

Kruger wins the newly created seat of East Wiltshire in the 2024 General Election. None of his odd thinking emerged during the election period.

Danny Kruger has become conspicuous in recent weeks as the quasi leader of a group of MPs who wish to see a firmer crackdown on the boat people crossing the Channel to claim asylum in the UK.  The issue of the boat crossings is the subject of considerable political controversy and many people are outraged at the arrivals.

He was in the news recently when it was reported that the government had ‘caved in’ to demands by party rebels, in which he was a leading member, to amend the Illegal Immigration Bill by allowing ministers to ignore European Judges in certain situations.  This sprang from the last minute intervention by the European Court which prevented the deportation flight to Rwanda last year from leaving Boscombe Down near Salisbury. This decision enraged many in the Conservative party and much of the right wing media.

He is in the news again this week for an article in the New Statesman (online) which repeats and amplifies comments about immigrants calling it a ‘national disgrace’.  He goes on:

“The importance of this topic to many voters cannot be overstated.  To put it as plainly as people outside the liberal bubble put it: the small boats scandal shows that the powers that be are not on the side of the British people, but instead serve the abstractions of “human rights”, “international law”, or other signals of the middle class virtue. Lawyers and activists get to buff their own haloes while ordinary people pay the price, in longer queues for public services, lower wages and higher taxes”. 

The placing of human rights and international law in inverted commas is interesting and is a piece with another quote from a chapter he wrote on this subject discussed below.  The article suggests that ordinary people are experiencing difficulties in obtaining public services and having to pay higher taxes because of this immigration.  The facts speak otherwise and a number of Home Office reports demonstrate that immigrants are a net benefit to the UK economy. Mr Kruger may be forgiven for not knowing this as the reports have not been published. Wording such as the ‘abstractions’ of human rights suggest that they are in some way theoretical and is perhaps intended to be dismissive. ‘Powers that be’ is also puzzling since that is the Conservative party of which he is a member. Issues of access to public services is as a result of government policy, austerity and other matters not connected with immigrants.  

In a book produced by a group of backbench Conservatives called Common Sense: Conservative Thinking For a Post-Liberal Age (2021) is a chapter written by Danny Kruger entitled Restoring rights: Reclaiming Liberty. This chapter goes a little way to explain the thinking of the MP.

His chapter contains odd reasoning and some curious logic.  His first claim is that the European Convention on Human Rights, drafted by British Lawyers after World War II [lawyers from other countries were involved so it is incorrect to say ‘British lawyers’] ‘sits uncomfortably with the English tradition of preventing tyranny’.  This will come as something of a surprise to the millions of people who were enslaved and were worked to death in the sugar plantations or those who worked in fearful conditions in nineteenth century factories.  The acquisition and retention of Empire also has many horror stories. Quite where this ‘prevention of tyranny’ was taking place is not made clear.

Human rights are misnamed he claims ‘the rights we really need, and the only ones we really have, derive from something higher and something lower than mankind.  They derive from the idea of God, and from the fact of nations: from a Christian conception of law …’ It would be difficult to locate in the Bible many of the principles enshrined in the ECHR or the Human Rights Act (which Mr Kruger is keen to abolish) if only because these ideas and principles were a long way from a society colonised by the Romans and where practices like slavery were common.  There are many favourable references to slavery in the Bible for example.  The ‘lower than mankind’ element is not explained (although it could be a reference to Psalm 8).

He quotes approvingly the American author Patrick Deneen who wrote Why Liberalism Failed (2018).  Many do not agree with Kruger’s admiration of Deneen’s book regarding his blame of a huge range of society’s ills on excessive liberalism to be odd not to say ridiculous.

His analysis seems to go seriously awry however with the following passage:

“And so, from an early stage we came to think of rights as the means by which we are set free from external pressure, set free from obligations to others; and from there it is a small step to the hypocritical assumption that rights confer obligations on others to satisfy us” p49 ibid.  This is a unique view of what human rights is about.  Surely the point of our system of government is that it does involve governments carrying out policies which are about the wellbeing of those who are governed?  It is why we elect members of parliament to raise taxes and pass laws which make our life as acceptable and as fair as possible.  Who are these ‘others’ he refers to?

To read all of Mr Kruger’s articles and speeches is to struggle to find a coherent strain of thought as far as human rights is concerned.  They are a mixture of false premises, muddled thinking and ideas sprayed around which frequently make little sense.  Yet he appears to be someone of influence in the party at present and is often to be seen being interviewed.

Sources include: New Statesman, the Sun, Evening Standard.

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Further threats to our human rights proposed


Suella Braverman, the attorney general, proposes further action to counter the influence of the European Court of Human Rights, ECHR

August 2022

The onslaught on the UK’s human rights continues apace. In a recent speech to the Policy Exchange thinktank, Ms Braverman argues for radical action to counter the influence of ECHR rules on UK legal affairs. This latest attack is almost certainly triggered by the decision of the European Court to prevent the deportation to Rwanda of a number of immigrants. This occurred almost minutes before the plane was due to take off from Boscombe Down airfield, a mile or two from where this is being written.

The government is evidently determined to reduce several key rights enjoyed by British people sometimes for centuries. A new act will make it harder to protest and gives the police and ministers greater powers to carry curtail them. The ability to seek judicial review is also to be curtailed. The ability to strike is to be subject to yet further restrictions. The Human Rights Act itself is to be abolished and replaced with a Bill of Rights which will be weaker. The weight of legislation, current or proposed, will together amount to a significant reduction in the ability of ordinary people to hold the government to account. We must also add sustained attacks on the BBC, its journalists and its funding, and the intention to sell off Channel 4 which are both seen as irritants.

We discussed in an earlier post, Ms Braverman’s dubious and we argued – quite inappropriate – attitude towards torture, echoing the arguments of Prof Posner of Chicago. We referenced an article in the Observer which showed that several of her claims about her career were of doubtful veracity: no record could be found for example of a supposed contribution to a legal text book. Her claims about the chambers she worked in were also questioned. She was one of the candidates to become Britain’s new prime minister.

In a review of her speech in the Guardian, she is quoted as saying:

[…] a culture where fringe campaign groups, purporting to champion rights, have claimed a moral high ground and have adopted an attitude of intolerance. Often with vastly inflated salaries and armed with a Newspeak dictionary, they have created mighty citadels of grievance across the public sector and made huge inroads into the private sector

Guardian, 11 August 20122, p5

She further claims that the UK now has a ‘rights culture’. One of the problems in discussing her comments and speeches is that few examples are given to illustrate the points she is making. She attacks the judiciary, the human rights community and is vociferous about ‘woke’ matters. She continues in office largely because of her loyalty to the outgoing prime minister, Boris Johnson. As Attorney General, she has to pursue a difficult balancing act. She is both law officer to the government and a member of the government, one of those peculiarly British positions which is fundamentally absurd but previous post holders have acquitted well. Ms Braverman has not, perhaps because of her loyalty to a prime minister who was forced to resign because of one scandal too many.

The concern is that the rhetoric and legislation which comes from it are becoming a danger. Human rights are seen as a threat. Quite how this ‘rights culture’ has damaged the interest of British citizens is never explained. She shares with Dominic Raab a dislike of protest, the judiciary and the European Court and they seek to weaken all of them, eagerly supported by the right wing press. Our system of government, imperfect as it is, is built on the notion of checks and balances. They seek to garner more power to themselves and, by more and more legislation, reduce the opportunity for challenge by protest or via the judiciary.

This post was written without using a Newspeak dictionary.

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Curious insight into Conservative view of the Human Rights Act


Devizes MP Danny Kruger has written a chapter in a book by the Common Sense group

May 2021

In recent years some members of the Conservative party seem to have a problem with the Human Rights Act and some would like to see it abolished.  Far right newspapers typify the act as being a means by which terrorists, murderers and others escape justice because the act provides lawyers with a range of loopholes to get their clients off. They call it a ‘criminal’s charter’.  Many of the stories, on closer examination, turn out not to be true or wanton exaggerations. 

The current corpus of human rights law started life after the Second World War and there were a number of Conservative politicians who were active proponents, including Sir Winston Churchill and David Maxwell-Fyfe. 

Since 2015, the tone has changed and in the manifesto of that year, David Cameron promised to scrap the act.  Little happened and by the time of the 2019 manifesto, ‘scrap’ had gone and a review was promised.  What is to be reviewed and how a new act would look and what it would contain has never been clear.  At the time, the Salisbury group raised the matter with our MP Mr John Glen, but we were not much clearer what they wanted it replaced by. The review of the act is currently underway.

A new book has just been produced by a group of backbench Conservatives called Common Sense: Conservative Thinking For a Post-Liberal Age. In it, is a chapter written by the Devizes* MP Danny Kruger entitled Restoring rights: Reclaiming Liberty. 

His chapter contains odd reasoning and some curious logic.  His first claim is that the European Convention on Human Rights, drafted by British Lawyers after World War II [lawyers from other countries were involved so it is incorrect to say ‘British lawyers’] ‘sits uncomfortably with the English tradition of preventing tyranny’.  This will come as something of a surprise to the millions of people who were enslaved and were worked to death in the sugar plantations or those who worked in fearful conditions in nineteenth century factories.  The acquisition of Empire also has many horror stories. Quite where this ‘prevention of tyranny’ was taking place is not made clear.

Human rights are misnamed he claims. ‘The rights we really need, and the only ones we really have, derive from something higher and something lower than mankind.  They derive from the idea of God, and from the fact of nations: from a Christian conception of law …’  It would be difficult to locate in the Bible many of the principles enshrined in the ECHR or HRA if only because these ideas and principles were a long way from a society colonised by the Romans and where practices like slavery were common.  There are many favourable references to slavery in the Bible for example.  The ‘lower than mankind’ element is not explained.

He quotes approvingly of the American author Patrick Deneen who wrote Why Liberalism Failed (2018).  Many do not agree with Kruger’s admiration of Deneen’s book regarding his blame of a huge range of society’s ills on excessive liberalism to be odd not to say ridiculous.

His analysis seems to go seriously awry however with the following passage:

“And so, from an early stage we came to think of rights as the means by which we are set free from external pressure, set free from obligations to others; and from there it is a small step to the hypocritical assumption that rights confer obligations on others to satisfy us” (p49).

It is incorrect to say that requiring the state to act in a lawful and reasonable way towards its subjects is in anyway hypocritical.  What is hypocritical about requiring the State not to torture us? What is hypocritical about having a fair trial?  Nor is it true to argue that rights set us free from external pressure.  This seems to go to the heart of the objections raised by some Conservatives about the HRA, and the attempts to weave in duties.  The argument seems to be you only deserve these rights in limited circumstances and in a conditional way. 

This argument is further developed in this passage:

“This conception of rights must be rooted in the existence of a community – a real community, not the abstraction of ‘humankind’.  A real community entails reciprocal duties, situated in institutions that can enforce them and mediated by the conventions of people who know each other and share a common culture.  This is the nation.  We derive our rights from our citizenship (or more properly, our subjectship)”. p52 (our italics)

The problem all along with the objections to the HRA is trying to tie them down to specifics.  In an earlier Conservative document Protecting Human Rights in the UK, the examples seem to be stuck on deporting foreign criminals as an example of obligations. 

The Human Rights Act, brought in following cross party consensus – and falsely characterised as ‘Labour’s Human Rights Act’ – represented a significant shift in power.  Ever since the Norman conquest, power rested with the elites: the king, the barons and gradually the landowners and aristocracy.  Concessions were drawn from them as a result of unrest, riots or events such as the Peterloo massacre.  Magna Carta sought to restore some of the rights enjoyed during Saxon times.  The ‘Glorious Revolution’ brought further changes.  The Great Reform Act some more.

We were subjects not citizens.  The HRA changed that and gave citizens a range of fundamental rights (some of which are conditional).  It would appear that for a small number of Conservative backbenchers in the Common Sense group this is troubling.  Yet Mr Kruger’s chapter never gives solid reasons for change, only rather nebulous arguments which crumble away on close reading. 

*Devizes is a small town 25 miles north of Salisbury.

kruger chapter extractDownload
Common-SenseDownload
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Human rights under threat


Talk organised by the Romsey group

Dr Claire Lugarre. Picture, Salisbury Amnesty

On Monday March 19 the Romsey group of Amnesty hosted a most interesting talk by Dr Claire Lugarre who is a lecturer in Human Rights Law at the Southampton Law School, part of Southampton University.

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’.

The talk

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.

BBoR

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.

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Observer letter


Letter in the Observer (19 February) from a group of lawyers stressing the importance of ECHR

Theresa May has repeatedly stated her feelings that Britain would be better served by leaving the European convention on human rights than it would leaving the European Union.  As we enter Brexit negotiations, there is now every possibility that both these scenarios could easily come to pass.  The ECHR has been the bedrock of peace in Europe since the Second World War and was instrumental in the remarkable growth of democracy in Eastern Europe after the fall of the Berlin Wall.  It is no coincidence that the one state that is not part of the convention, Belarus, is known as “Europe’s last dictatorship”.  The withdrawal of Britain from the EU and the ECHR in succession could embolden populist leaders in countries such as Hungary and Poland to abandon domestic and international commitments to human rights.

We face the threat of a human rights crisis with the UK trading away protections against torture for grubby trade deals with foreign tyrants.  We are calling for the EU to make Britain’s membership of the ECHR a legally binding requirement for any future free trade deal with the UK.  The rule of law and human rights are non-negotiable when new countries join the EU; they should be non-negotiable when countries leave and desire a free trade deal.

As parliament scrutinises the bill on withdrawing from the EU and further legislation on Brexit, MPs, peers and the EU itself must make sure that Britain’s membership of the ECHR is a requirement of any future trade deal with the EU.

Signed Sashy Nathan, Baroness Kennedy QC, Lord Lester QC, Sir Geoffrey Bindman QC, Alex Bailin QC, Alex Grigg, Ali Naseem Bajwa QC, Alistair Polson, Amos Waldman, Anya Lewis, Ben Cooper

Caoilfhionn Gallagher QC, Celia Graves, David Jones, Dr Leslie Thomas QC, Grainne Mellon, Top of Form

Greg Ó Ceallaigh, Harriet Johnson, Helen Foot, James Wood, Jelia Sane, John Halford

Jules Carey, Keir Monteith, Louise Hooper, Malcolm Hawkes, Mark Stephens CBE, Navita Atreya, Nerida Harford-Bell, Paramjit Ahluwalia, Patrick O’Connor QC, Phil Haywood

Prof. Fergal Davis, Prof. Francesca Klug OBE, Professor Steve Peers, Ravi Naik, Sadat Sayeed, Sally Ireland, Sarah Forster, Sean Horstead, Sir Paul Jenkins KCB QC, Stephen Lue

We should add that our MP Mr John Glen, is in favour of this policy.

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