Saturday 4 October 2014

Human Rights protection in Britain ~ 10 key points

The Conservative Party's document "Protecting human rights in the UK"has attracted a mass of comment.  It sets out the Party's plans for the human rights protection of the British people in the event that the Conservative Party is able to form a government in 2014.  A certain vision of the relationship between every citizen and the State is set out.  It is worth reminding ourselves of some legal facts as opposed to the "spin" adopted in some political and media quarters.

Ten key points:

1. The European Convention on Human Rights (E Conv HR) came into force in 1953 with the United Kingdom being among the first signatories.  British lawyers were involved in its preparation.   It was NOT forced on to the UK.

2.  The E Conv HR is a treaty binding on the United Kingdom in international law (i.e. the law governing matters such as relationships between States and international bodies).  The Convention requires the UK government to secure to everyone within its jurisdiction the rights and freedoms defined in Section I of the Convention.  "Everyone" is the key word there!  It would be a breach of the convention to deny rights to particular individuals or classes of individuals.   Only a few of those rights are absolute.  Rights in the convention are more usually subject to qualifications so that other interests can override the individual right.  For example, the right to liberty does not prevent imprisonment for criminal offences.  

3.  The E Conv HR comes within the role and responsibility of the Council of Europe (47 Member States) and NOT the European Union (EU).  The Council and the EU are very distinct bodies with different purposes.

5.  The E Conv HR established the European Court of Human Rights (E Ct HR).  Under Article 46 of the E Conv HR the British government must “abide by”, that is, it must follow – not ignore or take into account – final decisions of the European Court of Human Rights. The UK willingly signed up to Article 46.  In most matters, the UK has a first rate record of compliance.  At the present day, very few judgments actually go against the UK though some that have done so have involved high profile matters.

6.  Signing up to the E Conv HR was an exercise of national sovereignty and no aspect of that sovereignty was given away to either the Council of Europe or to the E Ct HR.  The UK Parliament remains sovereign within the UK and may, if it so decides, enact laws which are contrary to the E Conv HR though, if it did so, the UK government would have to take whatever international law consequences might arise - (e.g. possibly, ultimately, expulsion from the Council of Europe).

7.  In 1966, the UK government permitted individuals to petition the E Ct HR.   This became a right under the Convention as a result of Protocol 11 which came into force in 1998.  (Protocols are basically extensions to or amendments of the E Conv HR).  [The right of petition has an interesting history considered by Dr Ed Bates in a post on the UK Human Rights blog ].   

8.  Before the Human Rights Act 1998 (HRA 98), the E Conv HR operated mostly externally to the UK but there was nothing to prevent British judges referring to it and they increasingly did so.

9.  HRA 98 wove the E Conv HR into our domestic law by, for example, requiring courts to "take into account" judgments of the E Ct HR.  By no stretch of the imagination did "take into account" ever mean "slavishly follow" though courts often do follow E Ct HR decisions especially if there is a clear line of decision-making on a particular point.  In a few recent decisions, the Supreme Court of the UK has expressed disagreement with the E Ct HR.  The HRA 98 clearly preserves Parliamentary sovereignty since Parliament remains free to enact whatever laws it wishes.  Another important aspect of the HRA 98 is that it places on public bodies a duty to operate in compliance with "convention rights."

10.  Could the UK renounce the E Conv HR?  YES but there might be international consequences affecting membership of the Council of Europe and EU.  There would also be widespread international concern at the likely message that would be sent out to dictatorial regimes if the UK opted out of the convention.

Has the convention improved the law?

Numerous examples could be given where the Convention has been used to improve our law.  The Independent discussed some of them in an article published on 3rd October as did The Mirror on 4th October.  See also the British Institute for Human Rights factsheet and the various posts linked to HERE.  It is very doubtful that such improvements would all have been secured without the impetus provided by the Convention.

Political and media misrepresentation:

Whilst the government clearly dislikes certain decisions of the E Ct HR, it does everyone a disservice by misrepresenting those decisions.  Thus, the E Ct HR has NEVER said that the UK must give ALL serving prisoners the vote.  The E Ct HR has NOT said that British courts cannot impose a whole life term in the most serious of murder cases.  The E Ct HR has (rightly, I submit) sought to prevent deportation of individuals to places where they may be tortured or where evidence obtained by torture might be used against them.  Torture is hideous and the UK professes to stand opposed to it.  (The E Conv HR also prohibits inhuman and degrading treatment).  Furthermore, the E Conv HR has been held to apply abroad BUT only in limited situations such as where the British Army operates a detention facility over which it has control. 

It cannot be said too often that the UK has a sound system in place for human rights protection for ALL of its citizens.  The danger we are now presented with by the Conservative Party proposals is that the system will be made far less effective.  Ministerial power will increase at the expense of individual rights.  This is a clear and present danger to which the general public should be alerted and about which they should be informed when they cast their votes in 2015.

Addendum 21st October:

The following diagram was prepared by barrister Adam Wagner of 1 Crown Office Row, London.  It is a neat presentation of the basic points about how the system of human rights protection in the UK operates at present.

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