David Cameron
has repeated his pledge that the Conservative party would, if elected, consider scrapping the Human Rights Act. Meanwhile, Tony Blair is
considering amending it to make it easier for politicians to overrule judicial decisions they disapprove of; presumably he was off sick the day they taught Separation of Powers at law school.
I think this is the point at which I bang my head on the desk in despair at the combination of electoral mindset and gutter journalism that has lead us to a situation where the major parties are openly competing as to which can undermine individual rights more. It's a bizarre, Kafkaesque situation where somehow Joe Public has been convinced that 'human rights' are something only criminals, paedophiles and terrorists have or need, and which ought to be placed under strict control as soon as possible. How quickly things change; only a couple of years ago, Labour politicians and appointees were trumpeting the Human Rights Act as one of the great legislative successes of New Labour's first two terms. As recently as late 2003, the Lord Chancellor could give
a lengthy tribute to the HRA, and say:
The right in particular try to derail us, whenever and wherever they can, from pursuing the key agenda of human rights. I understand why they want to do this. But I profoundly disagree with them. And I say this to our opponents on the right: we will not be deflected from ensuring that the people of this country know what are their rights, how they can obtain them, and how they may enforce them. Never mind the right wing: we will do the right thing.Ah well, that was when Oceania was at war with Eastasia. Fortunately the transformation of the DCA into the Ministry of Truth is still incomplete, so we may enjoy Lord Falconer's words - however off-message they may now be - on the DCA website. For now.
(Funnily enough, a speech along similar lines by Lord Irvine, the previous LC, that I referenced in a law essay on the HRA has now gone from the DCA website. It's still listed
here - under 1 Nov 2002 - but the link is now dead. Honestly, you can't get the quality of staff these days; whatever happened to that nice Winston Smith, he would
never have left a loose end like this...)
But why worry? Cameron has suggested further that the HRA would be replaced by a Bill of Rights (odd, I though we already had one of those, dating from 1689) and I fully expect that in the repugnant limbo-dance of outdoing one's opponent Blair will eventually propose something similar. Well, to put clear blue water between HRA 1998 and Bill of Rights 2.0, the latter will presumably have to be weaker and/or narrower in scope than the former. It would probably have even more in-the-interest-of-the-State get-out clauses than HRA 1998, and indeed the underlying ECHR, already do, and would in all likelihood seek to narrow protection to defined 'islands' of rights. Perversely, this would lead straight to the situation that Tory opponents of the HRA used to warn of: a legal culture where rights were defined in terms of those the Government let you have, not those it has constrained. The problems with this approach can be seen by adapting the words ascribed
1 to Martin Niemöller:
First they gave specific rights to Communists (about being Communists), and I did not speak out because what I wanted to say was not about being a Communist.
Then they gave specific rights to Trade Unionists (about being Trade Unionists), and I did not speak out because what I wanted to say was not about being a Trade Unionist.
Then they gave specific rights to Jews (about being Jews), and I did not speak out because what I wanted to say was not about being a Jew.
But they never gave specific rights to me to speak out about myself - so I still haven't.[1. I say 'ascribed to' because the history, exact wording and attribution of Niemöller's famous poem is complex and controversial - as is the history of Niemöller himself. But whatever the truth, the sentiment is valid.]