The relevance of Human Rights law and civil liberties in the next election

The current political situation 

As I stated before, there are many facets of the HRA and the ECHR which are inherently European in character. A party like the Conservatives, who capitalise on nationalistic ideals, were always going to be critical of these aspects of the Act. However, at points David Cameron has gone further than what might have been anticipated. In the past he has painted a very negative image of the HRA and has described the culture which the Human Rights Act has created as ‘chilling.’ He has openly stated that at the very least a review of the Act as it currently stands is needed (though in light of the recent Hamza case which he deemed ‘positive’ he has been more favourable). Given the theoretical underpinnings of the Liberal Democrats it is unsurprising that they have used their role in the coalition to block and challenge some of the proposals. In the next election, however, the Conservatives will be running for power and will be seeking to distinguish themselves from the Liberal Democrats. Depending how the case law in Strasbourg develops in the next few years there is a real possibility that the Conservatives will try and use their restricted vision of Human Rights as one of their selling points. This could be seen as a bid, in part, to win over people in the lower income tax bracket, circumventing the outrage over the current budget and the suggested pasty tax which seems, at least in form, to unduly favour the rich. Here I will discuss two of the main proposals that the current Conservative government have suggested and I will outline (a) my specific concerns with each of them and (b) what this reveals about how politicians can manipulate what ‘Human Rights law’ means to win votes. 

Specific previous suggestions by the Conservative Government 

Secret Courts and surveillance proposals 

(a)    What is the proposal

The recent Secret Courts proposals would allow the Secret Services such as MI6 to conduct trials in without press coverage or general public awareness. 

(b)   Issues with the proposal

I cannot stress enough how dangerous and regressive this is, as highlighted by the fact that the Commission for Human Rights immediately responded to the proposals so damningly. One of the main benefits of the HRA is that the government has been forced to be more open, by way of the courts having greater powers to review all governmental actions but also more intense qualitative powers of review. It is especially important in the UK for there to be a higher level of public awareness as the courts have a weaker role than our European counterparts – where the courts can actually strike down government action. In the UK, the courts have no such power. Indeed, the main argument for the UK system not allowing the courts to strike down a piece of legislation or other governmental action is that the electorate holds the government accountable for their actions by way of their how they cast their vote in the next election. That is why it is particularly important that restricting any legal matter from public ears needs to be well justified. Because if the information of a governmental action is not released to the public, then how can they hold the government accountable? 

Martin Kettle wrote a particularly good piece in the Guardian recently where he reminded readers of the fact that we are not at actually at war. This so called ‘War on Terror’ as he rightly points out is not a war at all, and simply using this turn of phrase does not justify taking extreme measures in the interests of national security. Yes, it is important that the UK take sufficient measures to protect itself and its people, but in this case the extremity of the threat, from what I can see, is not great enough to justify restricted access to the courts. Further, Ken Clarke has admitted that the secret court proposals are in response to concerns from the US about their intelligence which, if presented in a public court of law, would be accessible to the public at large. So not only are the government suggesting that freedom of information should be limited, but that it should be done for the benefit of another nation state. 

The importance of freedom of press has been highlighted by the recent shooting of unarmed Trayton Martin where after international pressure his shooter was arrested. Here, we saw how the power of the press could be used for social justice. Technological advances have strengthened democracy by making it easier to access information and make our response to it heard.

(c)    Motivations and potential effects of the proposal

It was rather odd and perhaps a little silly really, to announce in the same set of the proposals that the government is going to be held less accountable to the public at large, but at the same time that they wish to increase control over that self same public. This suggests that the current Conservative party are aiming for a less libertarian approach and instead with to increase their own power.

Bill of British Rights 

(a)    What is the proposal?

Instead of referring to the ECHR, David Cameron stated last year that he thinks that the way forward for Human Rights law is a British Bill of Rights. Basically, the courts would work with a list of rights similar to the ECHR, but one that contains what Parliament considers specifically British as opposed to European rights. It is unclear what exactly the Conservatives envisaged when this proposal was announced. Though clearly capitalising on anti – Strasbourg feelings propelled by the press, to me it seems that the practicalities and actual effects of such a Bill were almost completely overlooked. At best the proposal was a poorly thought out way of taking a stand against the ongoing findings of the Strasbourg court on terrorism cases, and at worst a shameless play at winning support from those susceptible to nationalist and punitive sensitivities. 

(b)   Issues with the proposal

Firstly, how exactly would a British Bill of Rights differ from the ECHR? Would it be more rights built on top of those pre existing in the ECHR? This seems unlikely given that most of Cameron’s statements on the matter suggest that he thinks we are almost crippled by a saturation of civil liberties in this country. So, if we are going to take away rights from the ECHR then which specific aspects of the Convention are clearly ‘not British?’ The right to life and a family? Perhaps the right to freedom of expression? The ECHR allows a ‘margin of appreciation’ for each country to take into account their own respective cultural values. It was deliberately cast in broad terms so that it could be considered universal, and it would be incredibly difficult and potentially misleading to try and specify the limitations of such rights when they vary so much on the facts of each case. We allow judges the discretion to develop the case law incrementally, as each new set of facts arises and with respect to each state’s culture.

Secondly there are a large number of people who reside in the UK who do not consider themselves British. When David Cameron announced these proposals there was outcry from Scottish, Northern Irish and Welsh people who did not want to have their rights classed as ‘British.’ 

(c)    Motivations and potential effects of the proposal

Given the practical difficulties with the British Bill of Rights, what really worries me is that politicians seem to be willing to utilise the general public’s lack of comprehension of the legal system to make meaningless proposals in a bid to win votes. The British Bill of Rights is unlikely to come to fruition in the near future, but the fact that the very concept was suggested leads me to think that more brash and ill thought out ideas may follow.

In my next post I will be looking at Ken Clarke’s latest proposals, aimed at limiting the role of the Strasbourg court, and how they confirm some of my existing fears.

Unlocking Human Rights law in the UK

I doubt that there is a single person in Britain who has not come across the vague concept of ‘human rights’ in the past couple of decades. However, many of us have no real idea what the objectives of that Human Rights law are and how it really works in practice. It is more important than ever that people understand the strengths and weaknesses of Human Rights law as these issues are going to be debated heavily in the next election and will influence how people vote. In this post, I want to give you a layman’s guide to the Human Rights law in the UK. This should allow someone who does not have a background in law to get up to speed with the outline of how the law works and the main problems which have faced Human Rights law in recent years. It by no means goes into all issues surrounding the complex issues – but should provide a basic framework for forming opinions and understanding the difficulties Human Rights law now faces in the UK.

How is the body of human rights law formed in the UK?

Human rights law in the UK, as we currently know it, was implemented by the 1998 Human Rights Act. It was seen as incorporating the European Convention of Human Rights (signed by the UK and various other European countries in the 1950s) into domestic law. In other words, it made the European Convention of Human Rights legally binding on the UK. Before the Act was implemented the common law allowed judges the discretion to develop concepts pursuant to many of the aims of the HRA on a case by case basis in order achieve justice. But the HRA was the first time in modern British history that recognised rights were written down and had to be considered when the government wished to act.

To whom does the Human Rights Act apply?

Officially the Human Rights Act only applies to actions of the government and the organs of the government i.e. the public sector. In general it cannot be evoked between two private parties, though the courts have found various inroads into this rule. For example, the term ‘public body’ has been used very loosely to include large private companies such as British Gas.

Why was the Human Rights Act an unusual addition to British law?

The Human Rights Act was quite out of sync with the way that English law normally developed. Of course Parliament had passed legislation before but never an Act which would affect every case of government action. Instead of the law developing on a case by case basis judges were suddenly asked to work with a new piece of legislation which would revolutionise public law (and indeed spill into private law as well). Unlike other European countries like France and Germany, the UK does not have a written constitution. As such, implementing the European Convention of Human Rights by way of the Human Rights Act smacked much more of European methodology i.e. having a tangible list of rights the government should strive to protect. How the pre existing common law rights would fit in with the HRA was uncertain.

What exactly do the courts do with the HRA?

The court can either interpret applicable legislation or case law in a way that is compatible with the HRA or declare the act of the government incompatible. In general, the court will strive as much as possible to ‘interpret’ the law in a way that is compatible with the HRA and there are very few relatively few instances where the court has found a piece of legislation incompatible.  Even if an act is found incompatible the courts in the UK still cannot ‘strike down’ acts of government, unlike the Supreme Court in the US or Constitutional Court in Europe. But a decision of incompatibility, while rare, does heavily influence how the government behaves. The prime example of this is Belmarsh – where the court held that anti – terror legislation was contrary to the HRA and the government decided not to proceed with the proposed Act.

How can we understand the main problems facing the Human Rights Act?

It seems to me that there were/are two major problems facing the HRA when it was implemented, and which still have a huge impact today:

(a)    Unlucky timing – terrorism and the HRA

As I have already stated the HRA marked the introduction of a different kind of approach to the issues surrounding human rights and civil liberties. In order to prepare them for this, they were given two years to evaluate and prepare for the Act coming into force in 2000. However, the staggering problems which presented themselves could not have been more unexpected and challenging. The Act was passed by Parliament in a time of prosperity and security, what has been dubbed by many analysts as Tony Blair’s Golden Years -before 9/11, Iraq and Afghanistan. It was an Act passed almost immediately before the British government felt that it had to radically alter its policies to fight a ‘War on Terror.’ To say that this was bad timing is a bit of an understatement. When there is an issue of national security the government need to bypass the normal procedural requirements in order to effectively and efficiently protect its people. Under the HRA, the courts were charged with the responsibility of ensuring that no individual had their civil liberties overlooked so as to protect the public at large. So pretty much exactly when the courts were getting used to implementing the HRA, they had to deal with the toughest of questions. When is it proportionate and appropriate to allow the government to take advantage of the qualified nature of human rights in pursuit of the protection of the majority?

Cases involving terror suspects are always those which critics of the HRA point at to show its faults. They ask why the unelected government should not be allowed to do as it chooses and why unelected judges unnecessarily infringe upon the government’s power to protect its people. We have to remember why the ECHR was signed in the first place. In the wake of WW2 and Nazi Germany we realised that as well as issues of national security justifying the use of extreme measures, they can also be used as an excuse and must therefore be kept closely in check at these times. The argument that voters hold the government accountable by way of their choice in the next election does not hold, as the popular opinions can sometimes be transformed into horrifying and repugnant ideals, as in Nazi Germany, by the exercise of power of the current government and the press. Popular opinion is not enough to ensure that each and every citizen has their basic freedoms protected by the state, enabling them to enjoy life at the most rudimentary level. The courts (to a certain extent) are removed from popular opinion and can play important role in evaluating objectively decisions made by the government, with a clear set of rights to be considered in each instance, as in the HRA, and can draw attention to any issues they may wish to review.

(b)   Interests of the media

Closely related and heavily influential to public consciousness is the press, and in particular the tabloids. The Sun and the former News of the World consistently targeted human rights in the UK, and the Sun still does; with headlines suggesting that our law is now made up of ‘Rights gone Mad.’ However, such publications motivations for doing so are appreciated by too few. There is good reason why the paparazzi want to turn popular opinion against human rights law. The way Human Rights law stands continues to restrict what they can publish and thus costs them money. The Court in Strasbourg has severely limited the content which they are able to print. In the hallmark case of Von Hannover v Germany the European Court in Strasbourg ruled highly in favour of the right to privacy over the right of the media to publish pictures of celebrities. When the tabloids attack the HRA and Strasbourg they are unquestionably tapping into nationalist and highly punitive sentiments which are popular in Britain, and yes, this does help sell papers. But they are also doing something much more sinister; they are driving forward criticisms of the HRA and keeping them in the public consciousness for their own commercial interests.

Why might the British public be led to be suspicious of the HRA?

(a)    More power to the unelected judiciary – this problem is closely connected with the fact that the HRA has a strong European flavour to it. People in Europe are used to the idea that the court is entitled to review actions taken or laws passed by the government, and see it as the court’s right state whether or not such acts are in compliance with the pre existing and authoritative constitution. These countries have had a Supreme Court for this purpose for many years. Here in Britain, this has not been the case. Our founding constitutional principle has been Parliamentary Sovereignty i.e. that the democratically elected law making body makes decisions – with the authority of the will of the people behind them. As explained above, while the court in the UK still does not have the right to strike down acts of government, a declaration that an act is incompatible with the HRA will have a very strong influence.

(b)   The role of the European Court in Strasbourg - Not only do the courts now have a seemingly new found power, what really gave the Human Rights Act bite was the fact that it enabled individuals to not just appeal to a court in their own country – but to the European Court in Strasbourg as well for a ruling. While decisions of Strasbourg are not technically binding on the court in the UK, it has a great influence on how the court will deal with a case - by and large our courts have followed the jurisprudence of the Strasbourg court. That is not to say that Parliament can be said to follow the case law (or jurisprudence) of Strasbourg completely. Recently the Court in Strasbourg has held that prisoners should have the right to vote, whatever crime they have been convicted of. However Westminster have explicitly stated that they have no intention of giving effect to this decision, with Conservative MPs being genuinely ‘shocked and appalled’ by the decision.

I hope this provides a good introduction to Human Rights law and makes the subject seem a bit more approachable. In the next few posts I will consider how all of this relates to our current political situation and why it is important to grasp the basics to understand ongoing civil liberties discussions. At the time of writing this there is such a wide variety of ongoing issues that I am itching to discuss about including the secret court proposals and the deportation of Abu Hamza.

If you have any questions, issues or points of contention with any of the above please write to me! The main thing that this blog is supposed to do is get people thinking and discussing – so reasoned criticisms are more than welcome.