The Human Rights Act has failed
In 1998 the Blair government introduced a piece of legislation which was supposed to revolutionise human rights in this country; gone would be the days when ill-defined and ill-ordered laws and conventions protected the citizen, now was a bright new dawn when nobody would ever suffer state or corporate oppression again. Ten years on, I believe that this ‘Convention on Human Rights’ has failed to do what it was supposed to do, apart from make a few lawyers even richer. Typically, those attacking the Human Rights Act (HRA) would now launch into a rant about how all it does is protect murderers from being identified, or jailed rapists who want to keep their lottery winnings, or terrorists from being deported. While this might be a valid argument, the real question is whether or not the HRA has protected the rights of the citizen. In a word, no.
Britain currently has the longest pre-charge detention period in the world, at 28 days, which was brought in after the HRA was introduced. Nor did the HRA protect us when the Blair government tried to introduce a 90 day limit, and it won’t protect us when Gordon Brown attempts to raise the limit to 42 days. Britain has been complicit in America’s policy of extraordinary rendition, allowing them to use British territory to transport suspects to CIA facilities.
Peaceful protestors have been harassed and threatened with arrest, especially under the catch-all clause of ‘anti-terrorism’, even if their protest has nothing at all to do with terrorism and is not the slightest bit violent. Police have to give a good reason for stopping and searching someone, unless they are stopped and searched under section 44 of the Terrorism Act (introduced after the HRA).
The HRA supposedly enshrines the right to privacy. Britons are now the most spied-upon people in the world. CCTV cameras dot every street, and it is estimated that the average Briton is photographed by CCTV cameras dozens of times a day. People now have the right to know who their father is, so the privacy of sperm donors is no longer protected. Dozens of types of officials can now legally gain entry into your home. Governments can seize your property and leave you with minimal compensation if they so desire.
Both central and local governments seem to spending most of their waking hours trying to build up databases on us, which can be legally accessed by hundreds of thousands of government officials, not forgetting the hackers. Police keep DNA even from suspects who have been found innocent. Increasingly, forms contain questions of sexual orientation, religion and suchlike, even though it is none of the state’s business. One council was founded to have used anti-terror legislation to spy on a family whom they thought had lied about their address in order to get their child into a good state school (they hadn’t). ID cards will not be stopped by the HRA.
As for free speech, ha! Now the government is planning to criminalise large swathes of consensual pornography, after introduced a religious hatred bill, which is likely to turn out to be a lawyers’ playground.
Before the HRA was introduced, Britain was not some idyllic paradise. Nor would abolishing it solve all the problems in a stroke. What we need to protect our rights are carefully-drafted laws which relate to individual issues, and offer concrete guarantees rather than some vague commitment to ideals which the state always bypasses anyway.
HR legislation is also making Judges primary decision makers. It is the place of Parliament to make legislation/policy and not unelected judges.
The judiciary generally needs to find a more consistent approach when assessing the interaction between EU and British law. The ability of the govt to derogate from certain rights also needs to be widened.
Rights enshrined by the HRA are too often abused and need to be balanced by responsibilities. Specifically in the immigration field Art 8 and the assessment of proportionality in removal to Family/Private life is just used by many appellants as an adjunct to the Immigration Rules to give them a ‘second bite’ at the cherry.
I’m not surprised you think the Human Rights Act has been a failure, Rumbold. If you apply the basic logic you’re using, the Scotland Act has been a massive failure because it didn’t bring you tea and toast this morning.
The problem, I think, is a failure to understand the concept of “human rights” here. The only rights the HRA guarantees are those in the European Convention on Human Rights - there are countless UN documents that supposedly bind states to certain codes of conduct, but they’re pretty meaningless in real terms unless they’re enforceable. ECHR is.
There’s a pretty good reason why it was ECHR that was adopted in 1998, rather than, say, economic and cultural rights - ECHR provides basic rights and protects individuals against arbitrary decisions or disproportionate actions by officials; it provides governments with a lot of wriggle-room to react to unexpected outcomes and it’s backed by decades of case law. The only absolute rights are the prohibition of torture and forced labour. All the others are subjective and open to interpretation within the law of individual states.
Of the major HR “scandals” of the past ten years, it’s noticeable that almost all of them have fallen on basic principles of domestic law, not the HRA. The slopping out judgement found a breach of the right not to be subject to degrading treatment, but the final judgement was against the Executive’s breach of the common law duty of care. The Afghan hi-jackers case fell because it was bungled by prosecutors and officials, while the Lottery rapist case was about the timebar on lawsuits following injury, which is a basic principle of English law.
Look at that last one, for instance, and you’ll see how daft our discussion of these issues is. The case against it is to say that the government can retrospectively and arbitrarily change the law to punish unpopular individuals, a very dubious assertion if you’re arguing in favour of strong protection of rights.
On detention, the ECHR only holds that prosecution should take place within a reasonable time and should be even-handed, i.e. should treat every suspect the same regardless of creed or colour. It sets no guidelines on pre-charge detention, nor does it prevent police searching those they find suspicious.
ECHR says nothing about the level of surveillance in public places, and definitely says nothing about anonymity for sperm donors, because these are for elected governments to decide. If it did any of this, then not one of the European governments would have signed up to it, and there would be no recourse for arbitrary and unjust treatment at all.
This is a basic confusion between the realm of democratically elected governments, i.e. if you don’t like it vote them out, and the realm of law. Further, it places more stress on HR legislation than it can bear - no state is going to adopt measures that place serious restrictions on government’s freedom of action.
It is the place of Parliament to make legislation/policy and not unelected judges.
It is the place of judges to decide whether legislation is compliant with our international obligations, because the current government decided it should be so. No more, no less.
The ability of the govt to derogate from certain rights also needs to be widened.
This, we can do. We would have to call the legislation “The Human Rights Guidelines (Provided It’s Politically Convenient) Act 2008″, which would hardly assuage Rumbold’s fears.
Rights enshrined by the HRA are too often abused and need to be balanced by responsibilities.
Charitably assuming this isn’t a general dig at immigrants, it’s a revolutionary idea in law. Your rights are basic standards the state has to adhere to - your responsibilities are the duty to obey the law and pay your taxes.
That statement would make just as much sense if you said that rights needed to be balanced by ketchup.
Rumbold,
This is more serious than the stuff we have been talking about elsewhere. The European Convention on Human Rights is a piece of legislation that allows you, the citizen, to take your case to a higher authority than the state that allegedly wronged you. So, Rumbold -v- Rex, if it fell within the parameters, could be taken all the way to Strasburg. Where the nation state, in our case the UK would be judged equally with you, Rumbold.
You are, I think, struggling with notions of sovereignty here. What European nations, including the UK, have done, is agree to be bound at the margin, by a supranational court.
I can see how that conflicts with a libertarian agenda, where the individual is sovereign. But the problem still exists. What of libertarians -v- Rex? If Rex is the arbitor? You’d lose, every time.
If what you are saying, on a brighter note, is that we should all be suspicious of legislation from governments that attempts to categorise us, then I’m with you. Just don’t chuck wee babies oot with the bathwater.
Surely all the pre-charge detention talk is apples and pears? It’s common to cite this with respect to 42 Days, but look at, say, France where someone can be kept locked up for 2 years while magistrates prepare a case against them, and you can see that such comparisons are practically misleading, if technically correct.
The Human Rights Act does not distinguish between those who are law-abiding citizens and those who break the law. As far as I’m concerned, people who break the law should be treated differently in some circumstances relative to those to adhere to the law - especially when they are locked in prison.
http://lettersfromatory.wordpress.com
Flying Rodent:
I was rather annoyed by that…
But my point is that while those rights guaranteed by the HRA might be good choices, they are not actually enforced, being so wide-ranging as to be meaningless.
Which weren’t really an issue in pre-1998 Britain anyway, therefore what was the point of adopting it, other than an empty gesture and a desire to boost the income of Cherie Blair et al?
Disgraceful though it might seem at first, I actually agreed with the decision not to force the rapist to hand over his winnings, because it seemed an abuse of state power. These ’scandals’ as you put it I deliberately left out of the discussion, but thanks for pointing out that they failed on points of domestic law.
My rationalising goes thus: the HRA has failed to protect us against this massive intrusion of state power, therefore it is useless. I know that you cannot have a tightly-drafted document which would appeal to every country, to why have one at all? It is much better for individual countries to introduce laws to protect our freedoms. I don’t object to the idea of rights legislation per se, in fact I want more effective rights legislation as the HRA is not doing what it is supposed to do.
Douglas:
Libertarians are normally in favour of any laws which curb the power of the state. The HRA does not.
I do distrust supranational institutions, especially European ones, who are all in bed with one another (don’t take the EU to the ECHR), but that is not why I oppose the HRA. I oppose it because it doesn’t work. In the 1930s the most liberal constitution in the world was the Soviet Union’s. Nice words on paper are all very well, but the more wriggle room you give to the state the more they will abuse their power. Some people were shocked when they found out that council’s had been using anti-terrorism legislation to spy on suspected minor offenders, but I wasn’t. The state cannot be trusted to use power wisely, so its powers must be curtailed.
Unitalian:
Good point. There was an interesting article in the Economist last week pointing this out. However, it is true to say that detention without charge has increased significantly under Labour.
whilst i see what you are getting at Rumbold some precision would be useful. The “Act” has not failed - it is only words at the end of the day -a piece of paper - “it” cannot do anything. its like saying the UN Declaration of Human Rights has failed. No, that document is not the failure, the failure is for institutions and state instruments who are failing to meet those standards.
So what has failed, and what you are pointing to - is not the document, it is about Government’s failure to preach what it has enshrined in a document.
But of course, this is down to the wider problem of States paying lip service to all sorts of lofty ideals contained in documents, but placing above and beyond all that, its right to do what it thinks “in case of emergency” and “exception”. So essentially, the problem is no matter what it says normally goes, in “certain times” i.e. all the time now, the State can do what IT wants, regardless of any rights, e.g. a fundamental one like habeas corpus, it thinks should “normally” be in place.
So the problem is, it doesn’t matter what we agree rest of the time, when we want, we can throw it out the window. Not the HRA, not some specific piece of legislation. The wider more fundamental fact that all this can be over-riden.
This is unfortunately very much embedded within what is considered legitimate activity for a State’s existence. And this is/will be the eternal problem libertarians have with States
i meant.. “this is the problem, not the HRA, or some specific piece of legislation.”
Sonia:
I am being precise. This act is a body of laws which is supposed to protect us from certain things, and has not. Therefore the act has failed. Better laws would reduce the power of the state and safeguard the citizen’s rights more effectively.
But if those institutions and instruments are allowed to get away with it, that points to a failure of the law. The state will always use powers in ways that were not intended, which is why to have to restrict the amount of power allocated to them.
If some emergency demands new powers, then all you do is pass very specific, time-limited legislation that has to be renewed by Parliament every six months. Even then it would not be perfect, but it would be a darn sight better than passing the legislation we have now, with the safeguards we have (or rather don’t have).
Agree with others that it’s the state that’s the problem. Rule of law is only an expression of how far a state enables them to function.
The state is no more than what its citizens want it to be - and if it isn’t protecting the citizenry and its expectations, and mostly their rights despite the citizens honouring their obligations - there is a small problem of state legitimacy. Take a few core functions of state - and rule of law being one of them - then, it’s pretty clear the state is on weak foundations if the Human Rights Act isn’t respected in letter and spirit.
…the HRA has failed to protect us against this massive intrusion of state power
Rumbold, can you point me to the part of the text in the link below that precludes states from deciding exactly how long individuals should be held without charge?
http://www.hri.org/docs/ECHR50.html#C.Art5
It’s not there, is it? So how can the Act be a failure? Toast, tea, point made, much as I hate to be a dick.
A huge proportion of the European Court on Human Rights’ recent cases have been people from eastern Europe taking action after being held for up to five years on mere charges, no trials. That’s why I emphasise the importance of stopping arbitrary detention, rather than that mandated by law as provided by an elected government - because that’s what ECHR is all about.
No arbitrary decisions, equal treatment, the state won’t treat anyone with inhumanity. You’d notice quickly if these rights were taken away - that’s the ECHR in a nutshell.
Which weren’t really an issue in pre-1998 Britain anyway
It was Churchill’s government that drafted most of it, for God’s sake, in the 1950s. They had some more pressing matters on their minds, if you know what I mean. If you want modern legislation for Britain, then you’d be better to keep arguing for it rather than attacking current legislation, because really, there’s a lot of fucking idiots who will back you up on the HRA here.
…they are not actually enforced, being so wide-ranging as to be meaningless.
But they are, every day. They’re just not being enforced to your satisfaction, i.e. in a way inconsistent with the legislation, which is a very different matter.
I disagree with the government’s plans for 42 day detention, but the most valid defence against it is that that it allows too much leeway to officials with an vested interest in detaining citizens on the offchance they might be criminals.
IMO, that’s contrary to the HRA. That’s your starting point.
Rumbold,
This is very good, because it forces me to do the work.
This legislation has a history.
See here, if you like:
http://www.yourrights.org.uk/your-rights/the-human-rights-act/european-convention-on-human-rights/european-convention-on-human-rights.shtml
The European Convention on Human Rights was signed by the UK in 1953. It was that long ago that we agreed to be bound by a supra national treaty on how we treat our citizens.
The incorporation of the HRA into UK law simply gives more legal backing to the ECHR. What is described in legalese, I suspect, as ‘further effect’.
It is not just the UK that has signed up to this, many other signatories have too. What this does is to embed the ideas into the legal systems of the member states. Which is why you see folk arguing that 42 day detention as currently proposed could breach the HRA.
Which is a non trivial outcome of signing up for it in the first place, all those years ago.
You win some, you lose some. Here’s a Friends of the Earth attempt to take on Rex, where Rex had already made up it’s mind and the potential for the matter to be resolved in favour of the claimants would have been next to impossible in a UK framework. They still lost, but they had their day in court:
“Several years ago, the UK government changed the laws governing night flights to allow more of them to take place. As a result, a number of people who lived under the flight path and who were therefore already suffering from extreme sleep deprivation took the UK to court, and eventually to the European Court of Human Rights (ECHR). They claimed a violation of the right to respect for private and family life, as the ECHR does not have a specific right to a clean and healthy environment.
Two years ago, the European Court of Human Rights ruled in favor of the individuals. However, the UK appealed the decision and took the case to the Grand Chamber of the European Court . At this point, Friends of the Earth joined in the case to try and highlight the way in which other human rights courts around the world have addressed environmental human rights.
In a disappointing judgment in the summer of 2003, the Grand Chamber reversed the earlier decision, deciding in favor of the UK government. The judgment was severely criticized by human rights and environmental lawyers. Five of the seventeen judges hearing the case disagreed with the majority and found that the judgment unjustifiably gave “precedence to economic considerations over basic health conditions”. One small but positive feature to emerge was the formal recognition of ‘environmental human rights’ in an ECHR judgment for the first time ever.
So who really profits from night flights? Namely the aviation industry, and in particular British Airways. It is therefore not so surprising that British Airways joined the court case on the side of the government. Their hypocrisy is surprising, however, as seen in their advertisements for their Club World passengers: ‘Don’t Stand for Sleepless Nights’ and ‘Sleep deprivation causes memory loss, muddled thinking, visual impairment and memory loss’. Yes, precisely. One rule for big business and its first class passengers, and another for everyone else.”
Still, it made a great headline…
The ground has been well covered - 3 brief points.
1) In 1998, the rationale for the HRA was, ‘bringing rights home.’ From memory that was the title of the white peper. Not any other message. The point was that the rights enshrined in a treaty that the UK signed up to were to become enforceable in UK courts. That was the only genuine novelty.
2) Human rights theory has always seen each and every right as qualified, not absolute. The idea that criminals were ‘given rights’ is a real stretch.
3) The European Court is the last stage. A person has to have been through every domestic appeal stage before Europe will entertain any cases. This is something rather overlooked.
Flying Rodent:
But that’s my point. The HRA is failing to protect us partly because its definitions are so vague, and partly because it doesn’t deal with issues like the pre-charge detention at all.
You’re not being a dick- we are just having a debate.
Well if it is helping people from Eastern Europe good for them; it doesn’t work in this country though.
The ECHR is fine as a statement of intent, but not much else. What we need is better-defined laws which actually protect our freedom. Thus the HRA has to be abolished, otherwise people will go on believing that it actually protects us.
Douglas:
I’m not a fan of Heathrow’s night flights either, but as you say, once again the HRA did nothing to protect them. What is scary is that the government and BAA are now trying to abolish the rotation system (which works reaonably well), and have continous flights. The decision hasn’t been made yet.
The HRA is failing to protect us partly because its definitions are so vague…
This is the core point. The HRA is failing to protect us in the same way that marmalade, hedgehogs or even Martin O’Neill are failing to protect us.
If the HRA doesn’t forbid 42 day detention then it’s completely incorrect to say that it has “failed” to achieve an aim it was never intended to achieve.
All the HRA is is legislation that makes ECHR enforceable in the UK. As you say, you mean we need expanded rights that are not presently guaranteed. I’m certainly not opposed to that.
…it doesn’t work in this country though.
I can assure you it does. How many cases can you think of where anyone in Britain has been thrown in prison and left there for five years without ever seeing a judge?
You’re getting the cart before the horse here. If you want something like a British Bill of Rights, why would you start by abolishing the HRA? It makes no sense at all to do that before the new document is law.
If you want something like a British Bill of Rights, why would you start by abolishing the HRA?
For much the same reason you saw Hamid Karzai attacking the suggestion that Paddy Ashdown should coordinate western activities in Afghanistan.
A dictatorship of the judiciary is not sustainable, you have to build legitimacy, public backing, for national institutions that support human rights. And the way to do that is to first reject some of those things perceived as too closely imposed from abroad.
I don’t see any alternative to an abolition of the human rights act, and a derogation from the EHCR, as a pre-requisite to building genuine popular support for real human rights in the UK.
The lowest common denominator across the nations of Eurovision simply isn’t good enough. If you are going to write laws upholding principles with real consequences, the justification can’t be ‘well, we signed a treaty back in 1953′, or ‘it’s probably stupid, but there is no alternative the Eurocrats would accept’, or anything that involves any Latin phrases not regularly used on TV.
If you have want meaningful human rights, people have to be willing to _die_ to maintain them. Anything less is is just a temporary parking lot occupying a space where something might one day be built.
Flying Rodent:
Then what is the point of it?
But my point is that unless we abolish the HRA first, we will never get those expanded safeguards, as people will go on being duped.
But how many times has that happened between 1679 and 1997? It wasn’t as if we lived in some autocratic tyranny before the HRA was introduced.
Soru:
Excellent points.