Category: HRA

Reforming the Human rights Act


Will the proposed ‘reforms’ lessen our rights?

April 2022

For some considerable time, the Conservatives have nagged at the Human Rights Act (HRA) and reforming it has been a standard feature of all recent election manifestos. Abolition has been promised but not delivered. Paradoxically, it was a Conservative government which played a key role in achieving the Universal Declaration and the HRA itself was a cross party bill (despite modern claims that it was ‘Labour’s Human Rights Act’).

Attitudes to the Act have in part been shaped by media stories particularly at the tabloid end of the market. There have many stories criticising the act and particular decisions. Some of the stories are just plain wrong and the HRA was not the crucial issue which decided a case. According to the UN rapporteur Prof. Philip Alston, visiting the country to look at poverty and human rights issues, tabloid news papers ‘fundamentally distorted and successfully stigmatised’ the act. The general theme is that the legislation allows criminals to go free, prevents foreign criminals from being deported and generally act against the best interests of the population at large. It is to be regretted that when these stories are published, the relevant minister does not point out the facts and correct the wilful errors or plainly tendentious reporting. Worse, some politicians know they can get favourable media coverage by joining in making erroneous or exaggerated claims.

To an extent therefore, the government is hoist by its own petard. There is also the link to Brexit and all things European such as the European Court of Human Rights. Having cast human rights as essentially negative in their impact, that they are contrary to common sense, and that we are subject to legal diktact from Strasbourg, it is only a short step to propose abolition or reform.

In the Spring 2022 addition of the Amnesty magazine (No: 212), the matter is discussed in an article entitled The Great Rights Robbery by Tom Southerden. One of the fundamental points – one which we have made here – is that the act applies to everyone, equally. Of course, the problem with this is that it undermines privilege. Those, through public schooling, inherited privilege, money or other means do not welcome challenges to their status and superiority. There is also the assumption that our rights are ancient and have evolved over centuries since the time of Magna Carta. So we do not need this act they argue. This ignores much of our history: slavery for example which was enthusiastically promoted for nearly two centuries and which we are only now slowly coming to terms with (although the crass royal visits to the Caribbean might argue against that assumption). Students of nineteenth century social history will know of the desperate struggles by workers and citizens to get safe working conditions, sanitation and any kind of justice or fairness.

It appears that the plan is to downgrade the act so that it is no longer more important than any other piece of legislation. The ability to challenge the ‘mighty state machinery’ as Southerden puts it will be weakened.

The last few months have seen the monstrous scandal of the Post Office unfurl. Honest postmasters were variously ruined, shamed or imprisoned not for anything they did but for failings in the IT system. Failings that were known. Some committed suicide. Yet achieving justice has been a very long and desperate struggle. Although the legal battle was won, the money lost has not been recovered. The point is that ordinary people need all the help they can get to stand a chance in fighting overweening state power. The comforting idea that evoking Magna Carta and chuntering on about ‘common sense’ will do the job is pie in the sky.

As we have discussed in an earlier post, the Justice Secretary, Dominic Raab, dislikes the act and we have his book discussing at length the reasons why. We must not allow prejudice, fantasy thinking and an aggressive tabloid media promoting misleading stories to reduce our basic rights.

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Dominic Raab MP


Dominic Raab appointed Justice Secretary last month: should we be worried?

It is not often that we can read the thinking of a cabinet minister and rarer still for an MP to write about a topic which becomes central to his ministerial appointment. Dominic Raab, the new Justice Secretary after the recent reshuffle, has written about human rights in a book The Assault on Liberty: What Went Wrong with Rights, (Harper Collins, 2009) and was co-author with Kwasi Kwateng, Priti Patel, Chris Skidmore and Elizabeth Truss of Britannia Unchained: Global Lessons for Growth and Prosperity (Palgrave Macmillan, 2012).

The latter book became famous (infamous?) for the much quoted passage accusing British workers for ‘being among the worst idlers in the world’ and for Britain being what they termed a ‘bloated state with high taxes and excessive regulation’. The book was criticised for its slipshod research. Four of the authors have achieved senior positions in the Johnson cabinet.

Raab’s book is devoted to a demolition of human rights as expressed in the Human Rights Act. There are several key themes in the book the main one being that it is an attack on British Liberties. The act he claims has led to a proliferation of rights beyond the original intention caused by the court in Strasbourg widening the net with each new case.

This has led to confusion by those dealing with the law, police and local authorities he claims. Teachers can no longer keep control in class because of the act. Professionals have ‘their judgement trumped by being fettered by the diverse and onerous burdens dictated by human rights’.

Claims by individuals can now ‘select from an arsenal of new rights’ by which the individual can ‘force the state to prioritise the interest of the individual claimant over the claims of other individuals and the rest of society’.

There are interesting passages on torture. He says ‘[A] whole range of comparatively minor mistreatment is now covered by the wide ban on torture and inhuman treatment, well beyond the original intention of the convention’. No evidence is given to support this.

Significantly, a number of references are quotes from the Daily Mail which has maintained a steady stream of stories critical of the act and of human rights generally. Curiously, Raab quotes one concerning a man under siege who demanded Kentucky fried chicken as it was his ‘human right’. This made headlines in the tabloids but it turned out not to be true. Police routinely accede to reasonable requests in these circumstances in an effort to diffuse the situation and has nothing to do with human rights. Raab acknowledges this but explains that ‘if officials got it wrong it only serves to demonstrate the pervasive confusion’.

His history is not on sure ground either. He claims that the huge rise in prosperity between 1800 and 2000 was due to liberty. The argument seems to be that liberty is under threat from human rights and hence it will harm our prosperity. He rather ignores the influence of slavery and the slave trade which provide enormous wealth enabling the financing of the industrial revolution: hardly an example of liberty at work.

The entire book is a kind of peon of times past. We lived in a country which enjoyed liberty, trial by jury and a parliamentary system which is now threatened by a proliferation of rights ‘conjured up by human rights lawyers and campaigners’ he states. Conor Gearty refers to the ‘myth of the glorious past’ in his book On Fantasy Island (Oxford University Press, 2016). There was no glorious past. Women for example, then as now, could not look to the law for much in the way of protection. Ferocious laws were enforced against ordinary people to protect the interests of the wealthy and the landowners. Working conditions were atrocious for millions who died early deaths from industrial accidents or from the conditions they worked under. People were deported for the merest offence. It took decades of struggle to achieve basic sanitation and clean water in our towns and cities. And let us not forget that the judiciary are drawn from an extremely narrow section of society with 70% of them educated in just a handful of public* schools.

Raab’s book is thus based on the dubious proposition that we all enjoyed halcyon days of liberty and then along came the Human Rights Act which is slowly and surely destroying it. We can ask ‘liberty for whom?’ The wealthy, the elite, the well connected and the products of elite schools did enjoy the fruits of liberty. But the vast majority of citizens (actually subjects, we are not citizens) had little recourse to the law even if they could afford it. They were unlikely to get a fair hearing even if they did.

Perhaps one of the facts about the Human Rights Act is that it gives every person a list of basic rights. Everyone can in principle at least, use these rights to achieve justice, something they could not do before.

Dominic Raab’s book is worrying since it reveals reasoning which is feeble, flawed and far from historically accurate. Together with his contribution to Britannia Unchained it also reveals someone who seems to have both a low opinion of his fellow citizens and a somewhat disdainful attitude to their rights.

He is now our Justice Secretary.

American readers. Since we have many USA readers we should explain that ‘public’ schools are not public at all. They are extremely expensive private schools.

Podcast

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Is the Human Rights Act doomed?


The Conservatives have had a long-standing dislike of the HRA and a review of it has appeared in its last two or three manifestos. It has not always been so and indeed it was Conservative politicians who were instrumental in setting up the European Convention which preceded the HRA.

The government is making various claims in a bid to justify its desire to amend the act and by inference, to weaken it. Recently we have had claims about alleged vexatious claims against British soldier’s mistreatment of prisoners in conflict areas such as Iraq. They have also, erroneously claimed that the act prevents them tracking potential terrorists.

The various reasons put forward by the government combined with a steady stream of stories in the right wing press suggest deeper reasons at play. The current home secretary, Priti Patel and Michael Gove MP have both been reported as being keen to reintroduce the death penalty although the home secretary has resiled from that claim. Her proposed draconian measures for handling asylum seekers and immigrants however, reveal an illiberal attitude of mind. We have reported on this site, the shameful views of the Attorney General, Suella Braverman, concerning torture about which practice she seemed quite ‘relaxed’.

The HRA has perhaps shaken the establishment more than has been realised. It has led to a shift in power and enabled ordinary people to pursue injustice through the courts. We have seen in the Covid-19 crisis a government which has been reluctant to involve local government, much preferring to award contracts – without tender – to private firms who have shown a dazzling array of ineptitude. It seems to indicate a firm desire to retain the levers of power in Whitehall.  Challenge by private citizens is not welcome. 

The attempt to prorogue parliament and the proposed Internal Market and the Overseas Operations bills all show a government willing to break international treaties if it deems it necessary. We should be extremely concerned if the act gets abolished or its protections seriously watered down.  

 

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Are our human rights safe with the new Attorney General?


The appointment of Suella Braverman as Attorney General raises further fears for our human rights

May 2020

The Attorney General is an important legal post in the UK and is responsible for advising the Crown and the Government on legal aspects affecting their decisions.  They are not usually present in Cabinet meetings to preserve a degree of independence although the previous incumbent, Geoffrey Cox, did so because there were frequent matters to do with Brexit to discuss.  The appointment matters therefore and their views and opinions on issues such as human rights are important.

The new person in the role is Suella Braverman and she has strong legal credentials having been a barrister for seven years.  Her views on human rights are worrying however and are worth examinining.  In an article in the Daily Telegraph entitled: Britain is so obsessed with human rights it has forgotten about human duties (16 December, 2015) she sets out her thinking.

  • the mission (Universal Declaration of Human Rights) has failed.  She instances the lack of equality for women in the Islamic world, political authoritarians in Turkey, Hungary and Venezuela
  • the treatment of detainees in Guantanamo Bay means the United States has lost credibility on civil liberties
  • the plight of millions of people belies the noble ambitions of the Universal Declaration.

She goes on to explain that the one reason for this is that Universal Declaration was never a treaty in the formal sense and never became international law.  Another reason is that the rights are ‘described in imprecise, aspirational terms which allow governments to interpret them in any way they see fit’.

And there are:

hundreds of international human rights – rights to work and education, to freedom of expression and religious worship, to non-discrimination, to privacy, to pretty much anything you might think important in a perfect world.  The sheer volume and array of rights imply an all-embracing protection.  This is impossible, because there will always be trade-offs in which some rights are sacrificed to uphold others.

She marries this with an approving comment about Prof. Eric Posner of Chicago who has written a book called Twilight of Human Rights in which he dismisses the value of these rights.  It is clear that Suella Braverman has taken his ideas on board since they crop up frequently in her writings and posts.  For example, the comment above about the sheer volume of rights is a Posner point as is the fact it was never a treaty.  But the significant and chilling example is the issue of torture.

Torture

Posner explains that a poor country has a choice or trade off.  So if the police are torturing its citizens to obtain confessions, then the state can decide to spend its entire budget in eliminating this practice by retraining and monitoring the police’s behaviour.  Then it would have insufficient funds to improve the medical care of its people.

Braverman puts it thus in an echo of Posner’s argument:

In Brazil, there have been several cases of the use of torture by the police in the name of crime prevention.  They justify this by putting a general right to live free from crime and intimidation above their rights and those who are tortured.  To wipe out torture, the government would need to create a robust, well-paid policing and judicial services to guarantee the same results.  The government might argue that this money is better spent on new schools and medical clinics, protecting wider rights to freedom of education and health.  These sorts of value judgements, inherent in the practical application of human rights (whether we agree with them or not), undermine their universality.

We should be horrified that someone who has been appointed to become our new Attorney General, one of the high legal offices of the land, promotes the view that there is some kind of trade-off as far as the use of torture is concerned.  She has clearly swallowed Prof Posner’s arguments without pausing for one moment to think of the moral issues or the fact that torture is neither efficient nor effective in getting to the truth.

The practice was abolished in Britain in the long parliament of 1640.  Yet here we have a barrister, a member of parliament and now a senior law officer, responsible for advising the government and cabinet, that, under some curious reasoning, it might be justifiable because the money might ‘better spent elsewhere’ rather than eliminating it.

Her other main complaint is about the judges.  She was a keen proponent of Brexit and in Conservative Home she says:

Restoring sovereignty to Parliament after Brexit is one of the greatest prizes that awaits us.  But not just from the EU.  As we start this new chapter of our democratic story, our Parliament must retrieve power ceded to another place – the courts.  For too long, the Diceyan notion of parliamentary supremacy has come under threat.  The political has been captured by the legal.  Decisions of an executive, legislative and democratic nature have been assumed by our courts.  Prorogation and the triggering of Article 50 were merely the latest examples of a chronic and steady encroachment by the judges.  Conservative Home 27 January 2020  [Dicey was a Whig jurist and wrote an important book on the British constitution]

Clearly, she and others in government are still smarting from the decision of the Supreme Court not to allow Boris Johnson to prorogue parliament.  In August, Prime Minister advised the Queen to prorogue Parliament from the end of 9 September until 14 October.  The Supreme Court subsequently ruled that this advice, (and the prorogation that followed), was unlawful and of no effect because it had the ‘effect of frustrating or preventing, without reasonable justification, the power of Parliament to carry out its constitutional functions’.  Gina Miller has also left her mark.

A review of her comments and articles paints a worrying picture of someone who does not truly value human rights. They Work for You concludes that she consistently voted against laws to promote equality and human rights.  She voted against largely retaining the EU Charter on Fundamental Human Rights for example and for more restrictive regulation of Trade Union activity.

UPDATE:

This blog was written before Nick Cohen wrote about Braverman in the Observer.  It seems her career and claims of experience have been markedly exaggerated.  

UPDATE: 27 July 2022

Braverman stood as a candidate to become the prime minister of the UK following the resignation of Boris Johnson.  She did not make it to the final round however, failing to secure sufficient votes from fellow MPs.

UPDATE: 8 September 2022

She has been made the Home Secretary following Liz Truss’s appointment as the new Prime Minister on 6th.

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Human Rights Act


November 2019

The Salisbury Amnesty group is politically neutral.  We have an interest in the Human rights Act passed with all party consensus in 1998.  The Conservative Party’s manifesto for the 2019 general election says:

Once we get Brexit done, Britain will take back control of its laws.  As we end the supremacy of European law, we will be free to craft legislation and regulations that maintain high standards but which work best for the UK.  We want a balance of rights, rules and entitlements that benefits all the people and all the parts of our United Kingdom.

After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people.  The ability of our security services to defend us against terrorism and organised crime is critical.  We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.  In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.  Page 48 in the section: Protect our Democracy (our italics)

We can find no similar pledge in the other two main party’s manifesto.  To some extent this is a familiar promise.  In the past, the party has promised to repeal the act and to introduce a bill on rights and responsibilities.  Probably because of the pressure on parliamentary time with Brexit, such a bill has never emerged.  Promises to abolish the act also have never emerged.  We have asked what part of the act they want to abolish but this has never been answered.  The Party does seem to have a problem with the act as it is currently drafted.

The words themselves tell you little and may even seem on the face of it, benign.  What does ‘update the act’ mean?  Seeking a balance between the rights of individuals and our vital national security and effective government is a bit of a clue.  A regular theme of the right wing press is the threat posed by the act to our national security.  This for example from the Daily Mail in 2015:

Another day, another insult to common sense courtesy of the Human Rights Act and the lawyers enriched by this toxic piece of legislation, which allows them so profitably to ride roughshod over the wishes of Parliament and the British public.   Editorial, 1 August 2015

We shall be keeping a watching brief on Conservative party plans if they assume power on 13 December 2019.

Visitors to this site may like to visit Rights Info where this manifesto promise is also discussed.

 

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What’s it got to do with us?


Is the situation with human rights around the world in terminal decline?

The title of this piece ‘What’s it got to do with us?’ was said at a signing in Salisbury by someone invited to sign a card for a prisoner of conscience.  She did not sign.  Of course, anyone involved in any kind of street signing will have come across this kind of response from people who are not persuaded there is any point in sending such cards and who do not think someone in prison in a foreign country has anything to do with us anyway.

This year sees the 70th anniversary of the signing of the Universal Declaration of Human Rights.  This was done following the second world war and with the formation of the United Nations itself was part of a belief that there had to be a better way for countries to organise their affairs.  Although there was a desire for such a better way, it would be a mistake to overlook the difficulties in negotiations to get UNDHR agreed.  The colonial powers – principally UK and France – had worries about what was happening in their colonies.  They were reluctant to see rights being applied there especially in view of the brutal suppression of freedom movements.  Nevertheless, it was signed and it did usher in a new world order.

Looking at the world today however, does not lead us to believe that we are on an improving trend.  It is hard to select from a series of terrible events to illustrate the point.  The suppression of free speech and the arrest of thousands of journalists and academics in Turkey is one example of many elements of the declaration being ignored.  Syria, which has seen thousands die from bombing and the use of gas, is another example, this time by a member of the UN Security Council itself, namely Russia.  In China, vast internment camps established in Xinjiang to detain hundreds of thousands of Uighurs, and the arrest of human rights lawyers has been detailed in a UN report.  As Human Rights Watch expresses it:

The broad and sustained offensive on human rights that started after President Xi Jinping took power five years ago showed no sign of abating in 2017.  The death of Nobel Peace Prize laureate Liu Xiaobo in a hospital under heavy guard in July highlighted the Chinese government’s deepening contempt for rights.  The near future for human rights appears grim, especially as Xi is expected to remain in power at least until 2022.  Foreign governments did little in 2017 to push back against China’s worsening rights record at home and abroad.  World Report, 2018 [accessed 18 November 2018]

In Yemen, which this site has featured in a number of blogs, has seen a country taken to edge of viable existence by a campaign of bombing by Saudi Arabia and atrocities by the Houthis.  The Saudis have been supported by arms from the UK, France and the USA.  British RAF personnel are supposedly advising the Saudis.  The point here is not just the misery inflicted on the country but that schools, hospitals, weddings and other community events have been targeted in the bombing campaign.

Seventy years after the signing of the Declaration, we should be celebrating steady improvements across the world.  We are not.  Rights and freedoms are routinely violated in many countries around the world.  Torture is still widely practised by the majority of countries: countries that have signed up not to use it.   Even countries like the UK have been found shamefully outsourcing its use of this abhorrent practice to Libya.

We could go on listing wars, the displacing of millions including the Rohingya from Burma, the continuing scourge of slavery which is probably at a higher level today than during the triangular trade, and the murder of journalists in countries like Russia.

Here in Salisbury we have seen the brazen Novichok attack on the Skripals by what seems, beyond doubt, to have been Russian GRU agents.  In Turkey there has been the murder and probable dismemberment of Jamal Khashoggi.  None of this kind of activity is new – the CIA have been involved in murders and coups especially in South America – but that we have become inured to it.  To turn on the news is to witness war, misery, tides of refugees fleeing persecution or war, stricken cities and starving peoples.   There is a distinct feeling that the international rules based order ushered in after the second world war, now seems to be crumbling.  Famines in the ’80s and ’90s in Ethiopia and Somalia resulted in huge humanitarian efforts and the British public were moved by the scenes and reportage from the area.  Considerable sums were collected to help.  Today, we see the enormous damage and misery in Yemen but there is no sense of national outrage.

Causes 

John Bew, in a New Statesman¹ article, argues that the events of 2007 and 2008 were an important factor.  This is part of the theme of Adam Tooze’s recent book Crashed: how a decade of financial crises changed the world².  Up until the crash, there was a feeling of ever increasing prosperity (for some at least) and that free market ideology had won the day.  The crash destroyed that belief and importantly, ordinary people, not especially steeped in economic thought, began to realise that things were not right.  There was also a shift in power eastwards towards China and away from the west.  With it, the assumptions of democracy, free trade, and a rules based order had been weakened.  With the increasing interconnectedness of the world order and global trade, the ability of societies to deal with the ‘left behinds’ diminished.

With this decline, countries like the UK needed to work harder to sell goods to pay their way in the world.  That often meant looking the other way when we sold arms to unsavoury regimes.  ‘If we do not sell them, the Chinese will’ was a common belief.  Although the UK government often proclaims that we have a tough regime for arms control, the fact remains that brokers and dealers frequently and all too easily circumvent them.

The architects of the new world order after WW2 were the victorious powers: USA, China, Russia, UK and France.  These are the biggest seller of arms today joined perhaps by Israel and Germany.  The very countries wanting to achieve peace in the world are those busy selling the means to destroy it.

As the Amnesty annual report puts it:

In 2017, the world witnessed a rollback of human rights.  Signs of a regression were everywhere.  Across the world governments continued to clampdown on the rights to protest, and women’s rights took a nosedive in the USA, Russia and Poland.
From Venezuela to Tunisia, we witnessed the growth of a formidable social discontent, as people were denied access to their fundamental human rights to food, clean water, healthcare and shelter.
And from the US to the European Union and Australia, leaders of wealthy countries continued to approach the global refugee crisis with outright callousness, regarding refugees not as human beings with rights but as problems to be deflected.
In this climate, state-sponsored hate threatens to normalise discrimination against minority groups.  Xenophobic slogans at a nationalist march in Warsaw, Poland and sweeping crackdowns on LGBTI communities from Chechnya to Egypt showed how the open advocacy of intolerance is increasing.  Annual Report 2017/18 [extract]

Prospects

The prospects for human rights around the world look grim.  The idea of a steady improvement around the world does not look promising.  The belief in a new world order following the war also looks rather thin and forlorn.  With the major countries, who should be setting an example but are not doing so, the chance of improvement in the future does not look great.

In the UK, the are some in government who would like to remove the Human Rights Act from the statute book to be replaced by a weakened bill yet to be published.  If that ever sees the light of day we shall be campaigning against it.

There is also the problem of compassion fatigue.  No sooner does one calamity – whether man made or natural – disappear from our screens, than another one appears.  There seems no time to recover between them.  It is perhaps not surprising that people feel a sense of hopelessness.  The scale of some events is so huge, the quarter of a million Rohingya forcibly displaced  for example, that any response seems puny by comparison.

But people who believe in human rights and their importance in the world continue the fight.  We continue to highlight as many examples of wrong doing as we can.  In the words of our founder ‘better to light a candle than curse the darkness’.

If you live in the Salisbury area we would welcoming you joining us.  Events are posted here and on our Facebook and Twitter pages – salisburyai

  1. Revenge of the Nation State, 9-15 November 2018
  2. Adam Tooze, published by Alan Lane 2018
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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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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.

 

 

 

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British Bill of Rights


Liz Truss announces that the British Bill of Rights is back on the agenda

The new Lord Chancellor, Liz Truss, said in an interview that the abolition of the Human rights Act and its replacement with the British Bill of Rights is back on the agenda.  On the 10 August, The Times had suggested that it was not going forward.  As we speculated on this blog a while ago, the sheer amount of work needed to negotiate new trade agreements with the world and our exit from the EU, is going to consume parliamentary effort and ministerial time on an enormous scale.  Will they have time and energy to spend time haggling with the Lords over a new bill with all the rest that is going on?  Then there are the complex relations with Scotland and Northern Ireland to consider.  This pledge has been around for 10 years now yet Liz Truss gives no timetable.

We are committed to [abolishing the Human Rights Act]. It is a manifesto pledge. We are looking very closely at the details but we have a manifesto pledge to deliver that   Liz Truss

Liz Truss – picture gov.uk

The result will at best be a modest change in the law unless we are going to withdraw from the European Court itself.  This will have widespread effects especially in eastern Europe where the Court’s activities has had a positive effect on human rights.

The shame of it is that the public anger about the ‘terrorist’s charter’ and other nonsenses are fostered by the media and few of our MPs and Ministers seem to have the courage to stand up to them.  The Daily Mail, the Sun and the Daily Express are often loud in their criticisms but connection to actual facts is often weak.  But even periodicals like the Spectator – a venerable political weekly – is not above publishing tendentious material.  The hostility to the act is in part we argue, due to the privacy clauses which give some protection to those who have suffered press intrusion for no good reason other than boosting newspaper sales.

Abu Qatada is frequently produced as evidence that the act doesn’t work and meant, allegedly, that we were not able to deport him.  Firstly, if he was such a terrible man, why was he not arrested and prosecuted here?  Secondly, the failure of the Home Office and the then Home Secretary Theresa May to deport him was not the HRA but treaties we have which prevent us returning people to countries where torture is routine (as well as the HRA).  Qatada would not have had a fair trial in Jordan because, at the time torture, was common there.

We often read that duties and responsibilities are to be added as there are many – not just on the Conservative back benches – who are unhappy with ‘rights’ and feel that such rights should only be available to those who act responsibility.  How this would work is not explained.  Who’s to judge what ‘responsible’ means?  A police officer at the time of arrest feels that the person behaved irresponsibly and therefore decides not to allow the person access to a lawyer – a provision in the HRA?  Some rights are absolute and do not depend on good behaviour.  Other rights are qualified anyway.

It is hard not to see a parallel with the Brexit debate.  Years were spend denigrating the EU and then when it mattered, those like the previous prime minister, David Cameron, wanted to persuade country to Remain, he lacked conviction.  He was hoist by his own petard, or more colloquially, ‘stuffed’.

A concerted campaign has been waged by the media against the act and stories produced which only occasionally have any relation to the truth.  We have suggested before to refer to Rights Info to get the background and a sober assessment of some of the fictions.

Whether the BBoR ever sees the light of day remains to be seen.  It is likely that this is a rash statement by the new Lord Chancellor which may quietly drift into the background when the difficulties and disadvantages are explained.  But it will continue to lurk until a sufficient number of MPs – like those in the Runnymede group – stand up and speak positively about the act and the benefits it has brought to thousands of ordinary citizens who have used it to secure basic rights, stories that rarely find their way into print.

Salisbury MP, John Glen is among those who have publicly called for the act to be abolished.

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Sources: The National; The Times; http://www.parliament.co.uk; Spectator; Daily Express

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Why do they hate the Human Rights Act?


Act is likely to be doomed whoever is Prime Minister

June, 2016

Both the leading contenders to become the new Prime Minister, Boris Johnson [UPDATE: 30/06 Johnson rules himself out.  Michael Gove is standing]  and Theresa May, are committed to getting rid of the Human Rights Act [HRA] and want to introduce a British Bill of Rights [BBoR].  It is also true of Salisbury’s MP, John Glen who has written to that effect in the Salisbury Journal.  The commitment was in the Conservative party’s manifesto in last years general election.  This is yet to see the light of day and how it will differ from the existing act has still to be made clear.  We have suggested that the only thing which may stop this happening is that considerable time will now be needed to negotiate our exit from the EU; negotiate new trading arrangements with the EU and the rest of the world, together with a mass of budgetary issues once we no longer are in receipt of EU regional, sectoral and other funds.  Whether there will be time for a long battle with the Lords over the HRA is in doubt.

Perhaps now is timely to ask why is it that the HRA has become almost a dirty word and why the media in particular has waged a relentless campaign against the act and against the EU itself, culminating in the Brexit vote last week.  Part of the answer is in that last sentence: the HRA is the embodiment in British law of the European Convention on Human Rights and as such is tainted by its association with Europe generally.  But that is not the whole answer because it would be possible to be against the EU for economic reasons – slow growth, high unemployment and low investment for example – but still be in favour of the act.

RightsInfo in a recent post has argued that we need to learn 5 lessons from all this and argues for a changed approach to countering the inbuilt media bias against the EU project and the ECHR.  While this is true it is nevertheless important to understand where this bias comes from.  Why is a large section of the media (roughly 70%) so viscerally against the act and dedicated to writing misleading or plain wrong stories about Brussels and Strasbourg?  Unless we can gain an understanding of this then efforts to counter it and change minds are probably doomed.

Loss of Britishness

The first reason may be the sense that we have lost a sense of Britishness acquired over the last eight hundred years, especially as far as the law is concerned.  This was very evident during the Magna Carta celebrations last year.  There was this sense of 800 years of seamless progress culminating in the corpus of law we now have.  Then along came Europe and imposed a new law upon us which had wide ranging implications for all our law in the UK.  It said that human rights had to be respected and for some this came hard.  Despite the fact it was Churchill who pushed for the European Convention and our support for the UN Declaration of Human Rights in which we played – at times reluctant – part, the ECHR was seen as an intrusion into our affairs.  We simply did not need it and there was resistance to its application in the UK.

Magna Carta was about the release of power by the king to his barons.  Much of subsequent legal history has been about the steady release of power by those elites who hold it to the ordinary people.  As industrialisation gradually took hold in the nineteenth century for example, there were prolonged battles to obstruct and delay public health reforms; improved safety in factories; better housing, and for ordinary people to be educated.  The HRA turns this approach on its head and says that there are basic rights that everyone should have.  It also gives people the chance to challenge, using the legal process, those in power.  It comes as no surprise therefore that those who have the power are miffed at its loss or at least diminution.

One can also detect a kind of arrogance.  We won the war and helped put in place a set of rules for them (the Europeans) to live by.  We didn’t need them because we have this ancient and trusted system.  When we started allowing appeals to Strasbourg it came as something of a shock when rulings started to go against us.  Suddenly, this superb system didn’t seem so wonderful after all.  Ordinary people spoke and something of a shiver went through the political elite.

Gift to the world

Linked to this is that the British system is now used around the world principally by countries that used to be colonies.  From the USA to New Zealand,  much of Africa and the subcontinent, the system of justice is based on what was developed here.  Europe on the other hand has a different legal system and does not (with a few exceptions) have a corpus of common law.  It is difficult in these circumstances for some people not to feel that Europe is a ‘Johnny come lately’ to the legal scene so why should they tell us what to do?  After all, fascism was rife in Europe so who are they to lecture us on human rights?

The media and neo-liberalism

One of the strangest paradoxes of the EU debate and the passions the referendum unleashed is that our close links to the USA are almost never mentioned.  Yet the effect of the USA and its major corporations have arguably as equal an effect on life in the UK as do the machinations of Brussels.  We have witnessed major tax dodging by US corporations such as Google, Amazon, Starbucks et al amounting almost to plunder.  Starbucks graciously agreed to pay a voluntary amount and Google a trifling sum.  Europe has shown itself to be keener and tougher in its approach to taxing these behemoths.

Throughout the whole debate following the Snowden revelations, it was the linkage between the American spy agency NSA and GCHQ which was a significant fact.  NSA used GCHQ to hoover up information on US citizens which, under their Constitution, they were not allowed to do.  Both were engaged in mass surveillance largely uncontrolled by our politicians who were – on this side of the pond at least – asleep at the wheel.

A large chunk of our media is owned by Americans, most particularly the Murdoch family.  This was allowed to happen to help Mrs Thatcher gain power.  The important point however is that these proprietors are keen believers in the Neocon agenda.  For them good government is small government.  They still believe in the merits of unfettered free markets.  The emphasis on the social chapter in Europe is not something they are at all keen on.  Power is also important and as we saw during the Leveson hearings, they were used to slipping in and out of the back door of Downing Street for surreptitious and unminuted meetings with the Prime Minister of the day.  Europe makes all this harder.  Instead of a ‘quiet word’ with the PM, there are 27 other countries to deal with.

American power is therefore widely felt and in many areas has greater influence than anything coming out of Brussels.  Yet it is Europe and Europe alone which fills the media and the airwaves.  There is thus an inbuilt bias in the reporting of Europe and American power almost never gets a mention.  It wasn’t Europe which took us into the Iraq or Afghan wars.

Media and privacy

Still on the media but taking in the tabloids in particular, is the issue of privacy.  The phone hacking story revealed many parts of the British media to be acting outside the law.  People’s phones and emails were hacked, bank accounts blagged and for some celebrities and politicians, they were almost unable to communicate with anyone without the risk of their message being intercepted.  The full story can be read in Nick Davies’s book Hack Attack [1].  Aspects of this was illegal but recourse to the police was largely a waste of time since the police themselves were selling information to the tabloids or were afraid to tackle the media with whom they had an unsavoury relationship.  It has been argued that the phone hacking scandal only saw the light of day because of the HRA [2].  Regulation into interception was introduced because the UK fell foul of the ECHR.

The print media were feeling the pinch however with falling advertising revenues, fewer people buying newspapers, preferring the internet to gain access to stories, and increasing costs.  Much easier therefore to hack into celebrities’ phones to get a juicy front page.  They were free to do this because there was no law of privacy.  The HRA does provide some privacy protection and this poses a threat to their business models.  So parts of the media have a problem, both ideologically with its adherence to free market ideas and, its business model based on intrusion.  Europe is a threat to both these aspects, especially the latter from the HRA.

Thirdly is the concept of freedom and responsibility.  To be able to reach millions of people either in print or online is a huge responsibility, a responsibility to give as balanced a view as possible to impart the key facts.  Freedom of speech is a precious thing but it does also come with some responsibilities.

To end this section it would be unfair to blame all the media’s woes on the media themselves.  They are there to sell papers and, as with all forms of marketing, it is based on the principal of giving people what they want.  Clearly, they have picked up a mood or anti-Europeanism and they have provided the stories to match.  One can argue that they have failed to provide a balanced view.  They, however, might argue that the Independent newspaper was balanced, but is now only available on-line and the only other paper trying to give an even handed view is the Guardian which sells only a derisory number of copies.  If the public were interested in balance and wanted to read the benefits of EU membership they can do so.  They don’t.  The tabloids can fairly argue that they reflect the public’s view.  People buy their papers by the million, not the ones with balanced views. The Daily Mail has the world’s biggest on-line readership.

Politicians

Which brings us to the final point.  Against the tide of misinformation and negative stories about the HRA and Europe generally most of our politicians have either joined in or remained silent.  A few Lib Dems were proponents but they were reduced to a rump at the last election and are now scarcely a political force.  Whereas Ukip and Nigel Farage are rarely out of the news, the Lib Dems have all but disappeared off it.  Saying positive things about Europe to try and keep Britain within the EU came late to many of our politicians during the Referendum campaign and resulted in them not being believed anyway.  Anthony Lester refers to the ‘love-hate relationship’ between politicians and journalists in his book Five Ideas to Fight For  [3].

They are mutually dependent and yet proclaim their independence, each side claiming to represent the public interest better than the other.  (p159)

The media and politicians are both part of what has been termed the ‘Establishment’.  In his book The Establishment and how they get away with it [4] Owen Jones attempts a definition:

Today’s Establishment is made up – as it always has been – of powerful groups that need to protect their position in a democracy in which almost the entire adult population has the right to vote.  The Establishment represents an attempt on behalf of these groups to ‘manage’ democracy, to make sure it does not threaten their own interests.  (p4)

In a chapter entitled ‘Mediaocracy’ he describes how the media plays a role within this Establishment by focusing people’s ire on those at the bottom of society.  The success (if success be the right word) of this blame game could be seen in spades with the Brexit campaign and its focus on immigrants and Europe as the cause of many of our woes.  That immigrants contribute at least £2bn to the UK’s economy and are a mainstay of hospitals, the food industry, transport and much else is something you would not be aware of from much of the media.

It can be seen that the dislike of the HRA is the result of several forces.  The shift in power away from the elites and the provision ordinary people with rights is resented especially by those who have sense of being born to rule.  A right to privacy threatens those parts of the media whose business model depends on the wholesale intrusion into the lives of celebrities, sportsmen and women, and politicians (but never you notice other media folk).  An arrogance concerning the age of our legal system and its alleged superiority to the continental one makes us reluctant to accept correction or a different perspective from across the channel.  A loss of power and influence by media proprietors of the political establishment is also a factor where Europe more generally is concerned.  All these forces come together to result in an assault on the act.   Very little good is allowed to be said of it but plenty which is bad – whether true or not – can.  The HRA enabled a light to be shone into the Establishment and what was revealed was murky.  Is it any wonder they are so keen to see it gone?

This is the backdrop to the likely demise of the HRA.  And it seems little can be done to halt the process.  Good news stories rarely get into the media and are unlikely to be believed anyway.

Sources:

[1] Hack Attack, How the Truth Caught up with Rupert Murdoch, 2014, Nick Davies, Chatto & Windus

[2] A Magna Carta for all Humanity, 2015, Frances Klug, Routledge

[3] Five Ideas to Fight For, 2016, Anthony Lester, Oneworld

[4] The Establishment, and how the get away with it, 2014, Owen Jones, Allen Lane

On Liberty, 2015, Shami Chakrabarti, Penguin

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What happens now?


The country (UK) has decided to leave the EU: so what next?

In the early hours of yesterday morning, the referendum was concluded and the country decided to leave the EU on a high turnout.  The Prime Minister is to resign and there may be an election by Christmas.

One of the key issues that decided the referendum was the question of immigration and the other was sovereignty.  While those politicians who were in favour of remaining in the EU, went on about the economy, security, jobs and so forth, it was obvious from interviews in the street (vox pops) that very many people were concerned about more basic matters.  As far as many of them were concerned, they were suffering from the effects of austerity and the people who were making matters worse were the immigrants.  They were ‘flooding’ into the country and were putting a strain on public services and bidding down wages (it was claimed) thus making their own lives a misery.  Membership of the EU made matters worse as we were unable to stem the tide because of their rules.  Coming out was clearly a solution to their woes.

Sovereignty also reared its head from time to time and a familiar line was taking back our sovereignty so that we can make our own laws and run our own affairs, free from interference by Brussels bureaucrats and unelected judges in Strasbourg.  The election of our own judges is something that must have passed us all by.

So what of the Human Rights Act?  The Conservative’s manifesto made clear their desire to scrap it and replace it with a British Bill of Rights.  Months have gone by since the election and no sign has been seen of this document.

But if anything is clear from yesterday’s events, it is that hatred of the EU and its alleged interference in our affairs – including our legal affairs – is very strong and was one of the deciding factors which enabled the Brexiters to win the referendum.  This has been whipped up by a right-wing press and not a little xenophobia.

The problem now for the new government – expected at the time of writing to be formed by Boris Johnson – is that they just cannot leave the BBoR to one side in view of the fervour generated and promises they have made to the electorate.  But, the EU will be wanting a speedy departure by the UK from the EU, and not on painless terms either, to prevent contagion spreading to other disaffected countries.  So considerable time will need to be spent by thousands of civil servants negotiating new terms, agreements and treaties to enable our new relationship with the EU to continue.  Enormous parliamentary time will be needed as well.  The question is therefore – will there be the time or energy for this battle?  Getting a diminished set of rules through the Lords will not be easy.

It is a great pity that so many politicians have allowed the untruths and exaggerations by the right-wing media to gain such traction and to go unanswered.  Many believe that all red tape and rulings from Brussels are automatically bad news and diminish our lives.  We would be so much better off without them they say.  The word ‘free’ is used a lot: free of such rules, free to trade where we will, free to rule our lives and free of encumbrances generally.   The HRA has been a lifeline for many, many people in the UK.  They have used it to secure redress against arbitrary decisions which affect their lives.  Public authorities have to be cognisant of the act in their policy making.  Is all this to go?

We may ask the question ‘free for whom?’  Axing the HRA will not provide ordinary people with more freedom, but less.

So whether we will see the end of the HRA remains to be seen.

 

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