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.
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