Archive for the ‘Human Rights Act’ Category


Appointment of Sir Keir Starmer is an encouraging development for human rights

In previous posts, we have noted the campaign by some members of the Conservative government and  some parts of the press, against the Human Rights Act and the desire to abolish it.  The election of Sir Keir Starmer as opposition leader is an encouraging development therefore.

Sir Keir Starmer, the new Leader of the Opposition is, famously, a barrister.  He was also, famously, the Director of Public Prosecutions, a man who decided what charges should be brought and against whom. So what should we expect from a party led by someone deeply involved in human rights questions at a time when rights are under enormous pressure, not just globally but also in this country?

Once the coronavirus episode is over and normal(ish) political business returns, one of the first matters to be considered will be the increased power the government has accrued during the emergency, and what to do about it in the future.  The Labour Party has supported the emergency powers for the next 6 months, but will clearly need to review this at an early opportunity. Starmer has not expressed a view as yet, but we know that much of his previous work has been in defence of persons threatened by an overweening state.

Starmer’s career was built on work in the human rights and civil liberties field, notably in cases like the McLibel affair (environmentalists sued by McDonald’s over claims made in a factsheet) and East African and Caribbean death penalty cases.  He was named as QC of the Year in the field of human rights and public law in 2007 by the Chambers & Partners directory and in 2005 he won the Bar Council’s Sydney Elland Goldsmith award for his outstanding contribution to pro bono work in challenging the death penalty throughout the Caribbean and also in Uganda, Kenya and Malawi.  From 2003 to 2008, Starmer was the human rights adviser to the Policing Board in Northern Ireland.

Now we have (more or less) left the EU, extremists within the government may well want to detach us from the European Convention on Human Rights (nothing to do with the EU, remember), as well as rescinding the Human Rights Act.  Starmer has publicly defended the ECHR in debate (see The Lawyer 15/9/15).  In his Blackstone Lecture of 2015, he refuted the arguments against the existing HRA in considerable detail.  He has also written text books on the HRA, so is fully versed in the minutiae.

Martin Kettle has noted the change in outlook on human rights within the legal profession following the Act (see Prospect Magazine Feb 2020), and Starmer’s position at the forefront of this change.  With a liberal judiciary under pressure at the moment, his support may be important in the coming period.  Starmer will face attacks from left and right, but will be used to that.

It is notable that the Daily Mail is already leading the charge against the new man, tarring Starmer as a defender of IRA bombers (but then the Mail’s grasp of what lawyers actually do has always been rather tenuous).  The tabloid press are, of course, hostile to Starmer anyway since his decision as DPP to prosecute them over phone-hacking.

From the left, he has been criticised for – during his time as DPP – not pursuing the prosecution of the police officers accused of killing Jean Charles de Menezes and Ian Tomlinson (although in the latter case, he changed his mind in 2011 when new evidence came to light).  Also, he announced that MI5 and MI6 agents would not face charges of torture and extraordinary rendition during the Iraq War, concluding that there was insufficient evidence to prosecute, as James A Smith has pointed out in the Indy (9/1/20).

Sir Keir has given a clue as to his approach by appointing as his chief legal colleague on the front bench, David Lammy, while Lisa Nandy will be at foreign affairs, both of them with good records on human rights issues.  Lammy has been leading in parliament on the Windrush scandal, while Nandy has been strongly supportive of making businesses report on the human rights impacts of their operations.

 


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

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.

 

 


Worry about dilution of human rights in the UK.

Increasing concern is being expressed about the future of human rights in the UK and it is one of the issues the Salisbury group are keeping a watching brief over. This is an extract from ‘Each Other’ – the new name for Rights Info:

The government has pledged to “update” the Human Rights Act as well as judicial review – the means by which courts can assess the lawfulness of decisions made by public authorities. 

The proposed changes to the Act and judicial review will be recommended by a “Constitution, Democracy and Rights Commission” (CDRC) which the government said it will set up this year. 

While the CDRC’s changes will not be looked at until “after Brexit” – it will be important to pay close attention to, among other things, who is appointed to the commission, what their records on human rights issues are and how they arrive at their recommendations.  Aaron, New Editor 

There are many in government who dislike the act and there have been several statements and manifesto promises to abolish it and replace it with something else, what is not known.  Brexit consumed so much time that there was none left to do things like this.  The right wing press has kept up a fairly relentless campaign which influences government thinking. 

Our own MP, Mr John Glen is recorded as ‘generally voted against human rights’ by the Hansard ‘They Work for You web site so is likely to support any damaging changes. 

Read the full piece in Each Other

 

 


Happy New Year to our followers and supporters. This is likely to be an interesting year on the human rights front and we shall be keeping an eye on the new Conservative government’s wish to repeal or do something with the Human Rights Act which they dislike so. We do not know what is proposed – indeed it has been under threat for some years now but details of what is proposed are scarce – but with a large majority, they will be able to do more or less as they will.


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 UKWe 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.

 


The risk to human rights legislation and specifically the Human Rights Act seem to have risen in past week.  This concern has come about because of some equivocal statements by ministers in a recent House Of Commons debate.  Dislike of the HRA by some members of the government is well known and there have been plans to abolish it for some time.  They seem to have been kicked into the long grass because of the all consuming nature of the Brexit process and also because it has proved difficult to introduce a fresh piece of legislation – HRA2 we might say – that would get through parliament.

The recent row has emerged because a junior minister, Edward Agar, said the HRA ‘would be reviewed post Brexit’. SNP politician Tommy Sheppard was quoted as saying at the end of a 90 minute debate:

[he] felt he was “left without the unequivocal and categorical assurances I was seeking, in terms of the commitment to the existing Human Rights Act and the protection that it affords” Source; RightsInfo 13 February 2019

So it seems that once we leave, a review of the Act and its possible replacement is a possibility.  This story has a long genesis going back to when David Cameron was prime minister.  Theresa May was a keen abolitionist as home secretary.

The problem that some politicians have with it are several.  Firstly, a failure to appreciate the positive effects it has had on various issues large and small.  In countless cases, involving individuals and their dealings with government or local authorities, the act has been a key element in the defence of their rights.  Only rarely do these get reported and frequently, the role of the act in the proceedings is omitted.

Secondly, there is a belief that British rights are somehow superior to anything Europe could do and go all the way back to Magna Carta.  The imperfections of the British system are brushed aside.  Before the HRA was in place there was a steady procession of litigants going to Strasbourg to get justice denied them in the UK.  These judgements were often embarrassing to the British legal system.

Thirdly, the issue of human rights has got caught up in the Brexit debate and a belief among those wishing to leave that anything with a European tag to it is to avoided.  As Anthony Lester QC puts it:

Because the Human Rights Act use the [European] Convention rights as a substitute for homegrown constitutional rights, it arouses the hostility of euro sceptics, our system has come under increasing onslaught, not from activist judges but from political opportunists supported by right-wing newspapers that have made ‘human rights’ a dirty word.  Five Ideas to Fight For, One World, 2016 p39

Finally, and perhaps crucially, the HRA alters, in a quite fundamental way, the balance of power in our society.  For the first time in our history, the people have a set of rights.  Since we do not have a written constitution, this is a significant development.  It is perhaps not surprising that those – especially from the privileged classes – who enjoyed the power and influence it gave, feel a little resentful at its loss.

What happens after Brexit we will have to see.  Perhaps there are people who think coming out of Europe will mean coming out of the Convention.  They are in fact two different bodies and the Convention stems from the Council of Europe which we entered long before we entered the EEC.  It will still be in place.  It is possible that some will be disappointed to discover that we are still in the Council post March 29.

The local Amnesty group will, along with Amnesty International itself, be keeping an eye of events and will be campaigning if the plans to repeal the act become real.


Government minister gives equivocal answer

The threat by the current Conservative government to do away with the Human Rights Act (HRA) has lain dormant for some time due to the considerable time being devoted to the Brexit negotiations.  However, it reared its head again this week when a House of Lords EU Justice subcommittee asked a government minister for reassurance that it (the government) will not repeal or replace the act.

The Parliament Website has the following piece:

The House of Lords EU Justice Sub-Committee wrote to Lord Chancellor and Secretary of State for Justice David Gauke in December regarding the rights of citizens post-Brexit.  The Committee sought an explanation for the dilution of the Government’s commitment to the European Convention on Human Rights (ECHR).

Last week the Committee received a troubling response.  While again pledging an unchanging commitment to human rights and fundamental freedoms, the letter from Edward Argar MP, Undersecretary of State at the Ministry of Justice, ended with reference to the Government’s intention to revisit the Human Rights Act once the process of leaving the EU is concluded18 January 2019 [accessed 22 January 2019 our italics]

This is very troubling.  The hostility of many ministers and politicians to the HRA is well known and echoes the frequent stories and campaigns in the tabloid press.  It is seen by some as a threat to our way or life and to giving terrorists and criminals a ‘get out of jail card’.

On the contrary, it is in our view, one of the most important pieces of legislation in the last 20 years.  It has shifted power away from the state and given ordinary people a means to challenge faulty decisions.  The Hillsborough enquiry is a recent example and would not have happened without it.  As an Amnesty spokesperson put it:

The Human Rights Act has been central to the vital pursuit of justice in this country for the last 20 years.  It is the unsung hero of UK life, holding powerful people and institutions to account when ordinary people are let down.  It is deeply concerning that the Government refuses to acknowledge that reality.

The Human Rights Act is a critical safety net for everyone in our society.  Any attempt to dilute or remove the essential protections the Human Rights Act provides should be categorically ruled out.

They are mounting a petition which you can take part in if you wish.

If the act is abolished, all that will happen is that we go back to the bad old days of people having to beat a path to Strasbourg to get justice.

Sources:  Amnesty, Rights Info, Parliament Website


If you live in the Salisbury or South Wilts area and would like to join us, you would be very welcome.  Keep and eye on this site or on Facebook @salisburyai for one of our events and come along and make yourself known.

 


Letter published in the Salisbury Journal

A letter in support of the Human Rights Act was published in the Salisbury Journal today – 8 November 2018.  We have often discussed the threat to the act in this blog as it remains Conservative policy to abolish it.  There is little chance of this happening in view of the enormous amount of time and energy being expended on Brexit negotiations, nevertheless, the intention is there.  We do not know what will happen after March 31st of course. 

We have a meeting tonight, 8 November at 7:30, Attwood Road.


How will our rights be affected post Brexit?*

UPDATE: 26 April

An article in the current edition of Prospect by Vernon Bogdanor entitled ‘Brexit will erase your rights’ (May 2018) discusses

in detail the effects of leaving the jurisdiction of the European Court, the avowed government policy.  One of the important effects is that the ability of judges to disallow legislation which conflicts with the EU Charter of Fundamental Rights will no longer be possible.  Bogdanor makes the point that we shall be moving away from a codified and protected system to an unprotected one.  This is probably the first time this has happened.

For people keen on the sovereignty issue and see all things European to be harmful,  then this is what they seek.  For them the supremacy of parliament is a key principle.  But what has been happening over many decades – and preceding our entry into what was then called the Common Market – was that judges were becoming more willing to interfere in some aspects of legislation.  Because we have signed up to the European Charter, where our legislation conflicts with that, then judges are willing to rule against it.  The fundamental problem the UK has is a lack of a constitution.  The charter was a kind of stand-in constitution against which the legislative process could be tested.

The Human Rights changed that.   In regards to the HRA, Professor Gearty stated that:

In the breadth of its ambition and in the potential reach of its terms, British Law has never seen anything like this piece of legislation’.  The way in which the Human Rights Act 1998 changed the legal landscape was by inserting a new method of interpretation into British Law which required the courts to read and give effect to legislation in a way which is compatible with the Convention rights ‘so far as it is possible to do so’(s3); requiring that the courts take into account decisions of the Strasbourg Court when determining a question concerning a Convention right (s2); allowing the Court to make a declarations of incompatibility (s4); making it unlawful for public authorities to act incompatibly with the Convention (s6); and by creating a cause of action for breaches by a public authorities and providing for remedial damages for breaches. (s7 and s8).  (Church Court Chambers)

For critics of the involvement of the European Court, there is a kind of misty eyed reverence to the British system which does of course have many strengths and has evolved over many centuries.  This was particularly noticeable during the Magna Carta celebrations two years ago.  But historians will know that it has been a struggle for some simple rights and laws of benefit to ordinary people, to be enacted.  Legislation such as the factory acts and public health for example, took decades to enact against fierce resistance by vested interests in parliament.  Full enfranchisement itself did not happen until 90 years ago in 1928.

Recent events surrounding the Windrush scandal have shown a legislature and an executive all too willing to inflict misery on thousands of people.  The idea that parliament is there to protect the welfare of ordinary people such as those who came here in the ’50s, does not stand up to examination.  There is thus a real concern that once we exit the ECJ and the Withdrawal Bill becomes law then some of our rights will be taken away.    This will not happen straight off but over time using the infamous Henry VIII powers.  The role of the courts will be weakened.  The Charter of Fundamental Rights will no longer apply and we will be at the whim of parliament.  The key issue behind the scandalous treatment of the Windrush generation was that although there were two immigration acts, a lot of the day to day nastiness was done administravely.  So the idea that parliament is sovereign is flawed.

One of the curious anomalies of our political discourse is that people do not usually trust politicians.  If someone at a public meeting said ‘I think we should trust politicians’ it would likely engender laughter and ridicule.  But by removing our country from the aegis of the charter we will be giving power to politicians and the executive which amounts to trusting them with our rights.  Since parliament is rife with self-interest, secretive lobbying by special interest groups, the revolving door enabling ministers and others to take up lucrative positions with organisations which they were supposedly in control of, and behind closed door influence from powerful media barons: to expect it to take interest in the rights of ordinary individuals is a big ask.  There are honest politicians and many with consciences but they are few against the party machines.

Bognador ends his piece by saying that ‘the tide of history is towards greater protections, but the coming change threatens to make us more lawless.  And it may well be that a country, which wasn’t primed for this sort of change, will not be content with that.’

The arguments over the role of European law and the remit of the ECJ might seem esoteric, the sort of thing lawyers get enthused about and no one else is the least bit interested in.  But the effects of a loss of control over the executive and a dysfunctional parliament will eventually be experienced by all and there won’t be anyone to protect us.


Update: See the Amnesty blog post on the reaction of young people to the threat to human rights post Brexit.

*Amnesty has no position on whether to remain or leave the EU: this blog is just about human rights if we leave


We have reluctantly decided to cancel an event – planned for June this year – which was designed to highlight the positive aspects of the Human Rights Act and the benefits we all receive from human rights legislation generally.  It was to consist of a week of talks and other events in Salisbury with the overall theme of emphasizing how human rights have improved the lot of citizens in the UK.  It was arranged during the anniversary week of Magna Carta.

The idea for the event was spurred by the negative press this legislation receives and the drubbing that European institutions get from our media.  It is connected loosely to the Brexit debate where one of the guiding principles of those who wish to leave the EU is to be free of what they perceive as interference in our justice system by the European Courts.

In planning the event we had assumed that legal firms in Salisbury would be willing to support it and it was something of a surprise that none would.  Indeed, the majority did not reply to our requests.  One firm even hosts a human rights organisation but still did not reply.  We did eventually secure some financial support (from Poole) but it arrived probably too late for us to be able to do the planning.

So it will not now take place which is a pity.  Salisbury has recently become associated with the poisoning issue and allegations that Russia was to blame: highly likely in view of their previous behaviour and the nature of the attack.  At base is the issue of human rights.  Russia – if it is them – is a state in which lawlessness is now the norm.  There is no free press and corruption is the order of the day.  ‘Dirty’ money is looted by the Putin regime and much of it finds its way into the City of London.  Journalists are murdered and anyone looking like they might be a threat is prevented from standing in elections.

In the UK, despite many unsatisfactory aspects in our political process and the revolving door corruption, we are still able to vote them out – a luxury the Russians do not enjoy.  Ordinary people have more rights as a result of the Human Rights Act than previously yet they are constantly told that the act is a menace and needs to be got rid of.   It is sad that we were unable to celebrate this fact.