Posts Tagged ‘HRA’


The Justice Secretary announces sweeping changes to the act

It has been a long term ambition of some Conservative politicians to either abolish or seriously curtail the HRA.  In 2006 David Cameron said he wanted to scrap the HRA and replace it with a British Bill of Rights.  The Justice Secretary, Dominic Raab, wrote a book The Assault on Liberty: What Went Wrong with Rights which we earlier reviewed, which set out his arguments.  We suggested there that the reasoning was flawed, feeble and far from historically accurate. Along with three other members of the current cabinet, he contributed to Britannia Unchanged with its much quoted derogatory remarks about British workers who were alleged to be the laziest in the world.  There is footage of him saying ‘I don’t support the Human Rights Act and I don’t believe in economic and social rights’. 

The Conservative position has received much support in the right wing and tabloid press.  Articles regularly appear which assert the act is used to give succour to terrorists, foreign criminals and – most famously – reporting Theresa May’s claim that it was a cat which stood in the way of the deportation of a Chilean national.  It wasn’t.  Some of the stories are gross exaggerations.  Raab even quotes the story of a man in a siege demanding a Kentucky fried chicken because it was his ‘human right’ despite admitting it was not the reason: it was just normal police practice to help defuse a tense situation. 

The many benefits the act has brought to the lives of ordinary people are rarely mentioned.  Even when, in cases like the Hillsborough disaster, or the events at Deepcut, the act was central to securing justice for the families of those who died, that role is omitted from the coverage.  The act has been used in countless cases to secure rights for individuals in their relations with government agencies and local authorities.  Its provisions are built into every day provisions in those organisation’s activities.

 Review

In December last year the government established a review of the HRA and this was published on 14 December 2021.  In short, the Review does not call for substantial changes to the act and argues that it is a good piece of legislation.  The ‘vast majority of submissions [were] in support of HRA’ and they argue that ‘more needs to be done to dispose of the negative perceptions of the HRA (paragraph 14).  They go on to argue for a ‘stronger focus on civic, constitutional education on the HRA and rights more generally’ (15). 

They discuss the ‘margin of appreciation’ that is the degree of subsidiarity and the degree of latitude we have to interpret the law and conclude there is no need to change the current arrangements (26).  They were struck by ‘a high level regard in which the UK Courts and Judiciary are held by the ECtHR and the beneficial influence this has, both domestically and for the European Court’ (35). 

It would seem that the decision to make a sweeping overhaul was not informed by the Review but was a decision already decided on

The Justice Minister announced sweeping changes to the HRA in a statement before the Review was published.  The changes will counter ‘wokery and political correctness’ he claimed.  It is difficult to reconcile the results of the Review with the statement by Mr Raab of the need for radical reform.  It would seem that the decision to make a sweeping overhaul was not informed by the Review but was a decision already decided on.  

If we take into account the other bills before parliament: the Police, Crime, Sentencing and Courts bill and the Judicial Review and Courts bill, they represent, together, a serious attack on our liberties.  The ability of ordinary people to assert their rights, to protest or to correct injustice done to them will be seriously curtailed.  There is also a proposal to introduce a ‘permissions stage’ before someone can argue their case in court.  The right to a family life (art 8) may be removed altogether.  As the chief executive of Amnesty International has argued ‘if ministers move ahead with plans to water down the HRA and override judgements with which they disagree they risk aligning themselves with authoritarian regimes around the world’.  

In the last few months, we have seen serious failings by those who are meant to look after us. Serious police shortcomings and allegations of institutional racism have been made. The abysmally low level of rape cases which result in successful prosecutions. Serious failings in childcare with the tragic deaths of some small children. There have been failings within government too numerous to itemise. Far from a reduction in the means of redress, we need an increase. Yet the government seems determined to curtail our rights based on false assumptions and a desire for populist support.

It is likely the Salisbury group will be focusing on these assaults in its future campaigning.


At last we are to see what is proposed in a review of the HRA which several in the Conservative Party wish to see changed. The group is likely to campaign against the changes if, as seems likely, they weaken protections that the act presently provides. Taken with other bills currently going through parliament, they represent a serious attack on our liberties and echo actions by authoritarian regimes around the world.

For now, it might be worth highlighting our post on Dominic Raab MP, the Justice Secretary who is one of the proponents of the changes.


Members of the Salisbury group will be meeting the MP for Salisbury on Friday

In common with well over a hundred organisations, Amnesty is extremely concerned about several of the bills currently on their way through parliament. These are the enormous Police, Crime and Sentencing bill, the Justice and Courts bill and the Nationality and Borders bill. Together with the expected review of the Human Rights Act, they amount to a concerted attack on our freedoms. The group wishes to express our concerns to the MP. We will report on his reactions after the meeting.

The views of the Justice Secretary Dominic Raab were discussed in our last post.

Podcast


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


The Salisbury group took a stand at the People in the Park event held in Elizabeth Gardens on Saturday 18 September 2021. It was an all day event. Our main focus for the day was to warn of the government’s four bills which, individually and together, will reduce our freedoms. They are the Police, Crime and Sentencing bill, Judicial and Courts bill, Election bill and Nationality and Borders bill. Added to the review of the Human Rights Act which is not popular with many in government, it represents an assault on our freedoms to seek justice and hold the government to account.

We had a steady flow of interest through the day and all our handouts (below) were distributed by the close.


A coalition of over a hundred organisations has been brought together to try and counter the threat to the Human Rights Act and proposed changes to the process of judicial review. The Conservative government has introduced a range of bills to try and curb or limit protest, human rights and judicial review of their actions. The coalition has been put together by the Humanists.

The unprecedented coalition of over 220 organisations has spoken out against the UK Government’s new plans to reduce the scope of judicial review. They have together formed a coalition [the link provides a list of supporters] to defend human rights and judicial review from Government attack. The coalition, established by Humanists UK, is believed to be the largest human rights coalition in UK history. Those joining include charities, trades unions, human rights bodies including Amnesty, and religion or belief groups. On 21 July 2021 the Government published a new Bill that will curtail judicial review, if it becomes law.

The coalition reflects widespread concern that the various moves made by the current government are taken together, a threat to our freedoms. The Conservatives have long disliked the HRA, characterising it as ‘Labour’s HRA’ when in fact it was cross-party. We await the review itself but there is little doubt it will recommend changes that will weaken it.

Sources: Each Other, Humanists, Amnesty, Politics.co.uk


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

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.


Amnesty International celebrates its 60th anniversary this year and the local group braved the inclement weather to take a group shot to mark the occasion. The Salisbury group was established a few years after AI was formed and is still going strong. The need for human rights organisations is even stronger than ever with many examples around the world of people’s rights being infringed.

In Yemen there is the continuing war and bombing of civilians continues unabated; the genocide of Rohingya in Burma (Myanmar); Syria; wars in the Horn of Africa are just some examples.

In the UK we remain concerned at government attempts to stifle freedoms of assembly, the Judiciary and their long term desire to curtail or abolish the Human Rights Act.

If you live in the south Wiltshire area and would like to join us, you would be very welcome.


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.  

 


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.