Bipartisan Agreement on Human Rights: The Voters Don't Want Them, So Out They Go

[major_clanger]

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 ascribed¹ 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.]

Comments

[drplokta]

Even if human rights are something that only criminals need, people seem to forget that practically everyone is a criminal. Many people commit a dozen criminal offences every morning while driving to work.

[pigeonhed.livejournal.com]

The problem, as ever, is misreporting of the way the HRA works. I don't believe most of those who cite it, either in trying to apply it or in deriding it, actually understand what it is trying to acheive.

I keep hearing things like 'the people on the tube had a human right not to be blown up' which is undeniable, but misses the point that people suspected of the bombing have the right to fair trial and proper investigation. One does not over-rule the other.

[drplokta]

It also misses the point that human rights are largely about your relationship with the state, not with other people. Being blown up by someone acting on their own is not an infringement of your human rights in the same way as state-sponsored activites would be.

[major-clanger.livejournal.com]

Well, the argument is that your ECHR right to life means that the government has a duty to protect you from the action of others, and it has been generally held that culpable failure to do so is a violation of said right. But this is a right that has to be balanced against the rights of others to, for example, travel without interference such as searches. It is not a right that gets balanced against the rights of others to due process.

[damienw]

but, but, Eurasia has always been at war with Oceania. damn you crafty Eurasians, trying to tricks us.

[bugshaw.livejournal.com]

Where's that extra 20 grammes of chocolate you owe me?

[damienw]

er, it's in the post? no, wait! oooh, i knews you were crafty!

[surliminal.livejournal.com]

It does seem remarkable that the HRA has been publicised as something that gives criminals a get out of jail free card and stymies executive action, when in fact the margin of appreciation and width of state exemptions is so enormous in all but the most fundamental clauses that it's extraordinarily easy for the courts, if so minded, to claim the govt HASN'T breached rights.

Perhaps liberals defemding HRA, rather than arguing with the governemnt about what they haven't done, (eg give full rights to asylum seekers) should try emphasising all the cases which *have* upheld the government's restrictions on liberties (eg one I know off the top of my head - the refusal to reform the English law of libel in terms of presumption of damage in the name of freedom of expression.)

I can also honestly see no point in repealing HRA while the right to go to Strasbourg for individuals continues - one way or the other it all comes out in the wash. Now the human rights culture is out of the bag (ie lawyers have learnt, more or less, how to use it), however weakly a specimen it is, it can't (luckily) be squeezed back again - all you can do is put it back to being a position of last resort after exhaustion of domestic remedies - which would be ufortunate , but not fatal. (The only real anti-rights option for the UK is retreat from the ECHR altogether, which is impossible while remaining a member of the EU. Which ain't gonna happen. So in fact they're all just talking up votes :-)