Human Rights proposals – stripping away the Spirit of the Human Rights Act (1998)

News today confirms what has been on simmer for some time in England:

“A majority Conservative Government will scrap Labour’s Human Rights Act, and will end the ability of the European Court of Human Rights to order changes to British laws.” [Jack of Kent, October 2nd]

The Rt Hon Lord Howard of Lympne, CH, QC said:

“The argument is not about human rights, to which we all subscribe […] the way in which the Convention on Human Rights has been interpreted is far removed from its founders’ intentions.

“We are simply restoring parliamentary sovereignty, and some much needed common sense, to our human rights laws.”

If it is truly only about common sense, everyone with common sense must support it. So why the wide press and social media uproar, and statements by other parties they would vote against such a proposal in Parliament?

“No, the argument today is whether arrangements such as the European Court of Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have operated, bring the concept into disrepute.”

The argument appears to suggest, that there should be no need to be concerned about the removal of laws which ‘protect such rights’, that there is nothing to hide, nothing to fear. That in fact, we will do better by removing the framework which supports the common sense process. Common sense will operate and prevail without legislation.

If we believe the policy statement that under these changes, in effect, little would change for many people, why are the changes needed? By many accounts, many good results of the 1998 Act affect many of us.

Those much better informed than me, are debating this in the media and online, and is worth following. But I think we should be careful we don’t get so caught up in looking ahead, that we miss changes going on now.

The debate makes me ask myself, what is the purpose of a law, and whom should it serve?

If we are convinced change is needed, we assume a belief that the current process is flawed.  This comes in part from myths and misrepresentations in isolated cases. We should in discussion see past the UKIP defection, knee-jerk reaction which conflates everything ‘Europe’, into something from which which the UK could ‘opt out’ and what risks and benefit it would actually bring for whom.

Even if these changes were simply a case of choosing to ‘opt-out’ from the protections of the European Court for UK Citizens (which it is not) and even if one were to agree common sense can make better decisions without legal protection, one must consider that by removing the UK Human Rights Act [which had cross party support in 1998], and the European aspect of the laws, and by suggesting amendments to the 1951 European convention on human rights, changes would remove a layer of external protection and last support channel outside the UK system, for us as citizens.

Stripping away a spirit of Governance

Does this affect the opportunity for citizens and courts to benefit from external objectivity?

The 1998 Act was intended to reduce the number of cases going to the European Court. You can still take a case to the European Court, but the Human Rights Act meant a case has to go through the UK courts first. Whilst Scotland (and Wales to a lesser extent) has some devolved and historically founded independent law making processes, the 1998 Human Rights Act covers the whole of the UK. As does the ability to go to the European Courts as an extra layer of legal protection, guidance and enlightenment if exhausted at home. 

Will we no longer be able as legitimately, to call on bodies with cross-border, external best practices to learn from which has any accepted weight? Or cases to set precedence? But does the European Court have these powers anyway or do these policy statements just cause confusion?

Former Attorney General Dominic Grieve said the plans were flawed. The Tory MP said they would be “difficult to implement” and risked “undermining” the UK’s – and his own party’s – tradition of upholding human rights.
Proposals state: ‘In future ‘Britain’s courts would no longer be required to take into account rulings from the Court in Strasbourg. This would make our Supreme Court the ultimate arbiter of human rights matters in the UK.’

The statement gives the strong impression that the UK will regain a lost level of independence as a deal for giving up a layer of objectivity and governance.

In fact, we would not do so by repealing the 1998 Human Rights Act, the European Court would keep its role in the UK in practice.

Liberty clarified: “The Human Rights Act did not make Strasbourg a precedent-setting Court, as the proposals claim. This proposal will not increase the Supreme Court’s constitutional standing. It is already the ultimate arbiter of human rights cases in the UK but, if we remain part of the Convention, British people will still be able to take claims to Strasbourg once domestic litigation is exhausted. The dilution of Convention rights proposed makes it more likely that Strasbourg will find against the UK. The Court has no ability to require the UK to change British laws. Parliamentary sovereignty is intact, as made clear by the non-implementation of the prisoner voting judgment. But the British Government has ratified the Convention and so undertaken to comply with its international law obligations to respect the decisions of the Court.” [Liberty]

However the side comments on the 1951 Convention are of much more concern to me.

Are the Conservative proposal really going so far as to say it would remove that Convention undertaking, and no longer respect international law? Surely not in practice, but in spirit, it seems to suggest just that.

They would seek to: “Clarify the Convention rights, to reflect a proper balance between rights and responsibilities.”

that would be a huge change with respect for our position towards international law.

It seems to suggest that there would be a trade off giving up the universally applicable nature in the 1951  convention on Human Rights, to enable selective decisions which and when, rights would apply.

 

Stripping away the rights which apply to all

The basic principles of universality, inalienability and indivisibility, [outlined here by Liberty] are under threat through these changes:

 

“Human rights are universal. They apply to all people simply on the basis of being human.

Human rights are inalienable. They cannot be taken away simply because we do not like the person seeking to exercise their rights. They can only be limited in certain tightly-defined circumstances and some rights, such as the prohibition on torture and slavery, can never be limited.

Human rights are indivisible. You cannot pick and choose which rights you want to honour. Many rights depend on each other to be meaningful – so, for example, the right to fair trial would be meaningless without the prohibition on discrimination, and the right to free speech must go hand in hand with the right to assemble peacefully.”

Isabella Sankey, Director of Policy has taken apart some of the implications here. Her post is worth a thorough read.

Stripping away rights of access

 

It appears that we are moving towards a state in which the suggestion is that laws from the top down to control citizens’ rights will be applied universally, whilst at the same time, the rights of those who may feel unfairly treated by them are becoming restricted, through policy and in practical terms.

 

If British citizens would still be able to take claims to Strasbourg once domestic litigation is exhausted, they have to be able to not just in theory, but practice.

Courts which exist as channels to a fair appeal are only applicable to all as a right effectively, if they can be accessed by all. In the UK the  judicial review practices have changed on charging, which make universal access to judicial review harder. Recent changes to legal aid funding mean fewer people can afford access to representation.

 

This report from the International Council on Human Rights Policy may be ten years old, but is still I feel, relevant.

“…individuals, particularly those who are vulnerable because of exclusion, poverty and discrimination, unable to obtain benefits and rights to which they are entitled in law? This report examines the impediments that obstruct large numbers of people from accessing the full range of human rights. It analyses the performance and responsibilities of governments and other institutions, and identifies new forms of action that official and human rights organisations might need to undertake if access is to be improved.”

If Human Rights law is not accessible to all, and does not apply equally to all, it is not universal. Either not all are humans or they are not rights. Either way, the law is flawed.

 

I believe being universally applicable must also ensure universal access in order to be meaningful.

 

Stripping the Spirit of accepted Human Rights

Whilst the Acts  and declarations have legal weight which are of intrinsic importance and value, I believe it is also of importance to value the philosophy of the principles. It is this loss which worries me as much as the thought of losing concrete governance. We risk losing not only the protections of the law, but the Spirit of the law.

The spirit acts as an additional layer of conscience accompanying lawmakers and politicians in their decision making process.

I fear that he spirit of the values the state places on human rights,has been injured in recent times.

 I fear an ‘accepted’ element of barbarism has crept into our own humanity in the treatment of our ‘prisoners of war’.

 

The right not to be tortured or treated in an inhuman or degrading way is an absolute right. It should never be limited and it is a commonly held belief that there are no circumstances where this type of treatment of people can be justified.

 

However torture has become apparently justifiable recently. Justified by the highest authority in the US, some may see as the highest ‘western world power’. “We tortured some folks” was justified with the near flippant tone of a bumper sticker. Little official repercussion  appears to follow.

 

In doing so, the affiliated powers revealed how far we have fallen from our ideals of humanity embodied in the Universal Declaration of Human Rights.

Our values and self created global ethic in which some human rights are absolute.

It appears we have allowed through our government’s use of torture, an absolute boundary to be broken. So should we be surprised if that was only a first step? What is perceived as acceptable in how our government treats others, can only lead to a contagion in perception of what is right and acceptable in how others will treat our people abroad.

Crucially, I believe it also affects our own public perception of acceptance and ‘the norm’ in how we treat our own people.

Yet again, at home in human rights law, perception may be that this will not affect us. Not ‘our own’ kind of people. It will only affect ‘others’.

But the others in the case of human rights in the UK, may be our own gender or racial discrimination case at work. It may be how our friend or family member is treated by the authorities in sexual discrimination or in disability claims process.  Those in prison, the poor, minorities – these groups suit some agendas to portray as ‘other’. To thrive, I believe we must strive to remember our togetherness as a society which looks after one another, not treats ‘others’ as outside our realm of protections. As somehow, less ‘entitled’.  Less entitled to welfare. Less entitled to vote. Less entitled to universal rights.

If you think, no not me, then let’s consider closely our own reaction to the arrival of travellers in a local field. Or news of immigrants awaiting asylum rulings being housed in bed-and-breakfast accommodation.

It seems that to whom our human rights should apply, would become discretionary.

Are some Human Rights Claims more Trivial than Others? What about the same Human Rights for all?

If the majority of rights are non-absolute and can be limited or restricted in certain circumstances, we should not be surprised if these too are now trampled on if found to be ‘trivial’. The circumstances in which there is a need to take into account the rights of other individuals or wider society would become  discretionary.  How would that be defined and by whom?

“Limit the use of Human Rights laws to the most serious cases.”

There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

It appears that which subjects and in which circumstances individuals should be entitled access to human rights protection would become discretionary.

By saying some ‘trivial’ cases would not be relevant for consideration, you throw out the spirit of the universal applicability of Human Rights’ legislation.

Where does this leave the Spirit of our Human Rights in practice?

Politicians may say that in practice, any change will continue to ensure that:

But current reality is that changes have already made universal access to judicial review harder. Reality is that the changes to legal aid funding already means fewer people can afford access to representation. Minority groups find access a challenge. Mothers without means are representing themselves in divorce cases. People are facing abusers in court.

If now we further undermine both access and applicability, the reality is under the law some will be more equal than others.

So what of our basic principles?

Human rights are universal. They apply to all people simply on the basis of being human.

Human rights are inalienable. They cannot be taken away simply because we do not like the person seeking to exercise their rights.

Human rights are indivisible. You cannot pick and choose which rights you want to honour.

Whether this policy ever becomes reality or not, it harms the perception of the value we place on human rights, at home and abroad.

Universality of application and universal access are already under real threat, creating inequality for which humans, these laws offer support.

These proposals normalise what is in fact nonsense.

Whilst at least for now, it makes no difference in legal practice, I think the Spirit of Human Rights in the UK under this proposal, just had her wings stripped off.

 

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Chris Grayling’s eight-page strategy paper http://s3.documentcloud.org/documents/1308660/protecting-human-rights-in-the-uk.txt

[Liberty useful listing of what the Human Rights Act covers.]

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