ENLIGHTENMENT Wrongs about rights
Amy Jardine
Reading the headlines following the Conservative conference in October 2014 – ‘Conservatives Plan to Scrap the Human Rights Act’ – I’m sure I wasn’t the only one who felt disbelief. These words touch a nerve. Human rights sums up our shared humanity, a safeguard against discrimination, and a check on the powers of the state. These rights have not always been assured in Europe.
The European Convention of Human Rights was drafted in 1950 to enshrine in law a commitment to respect the rights of all people. It sought to eradicate the possibility of a European state ever again enacting violence and degradation upon its own citizens, as had been seen in the second world war. It was a work of communal maturity; a brave, brilliant, enlightened act, born from a time of unparalleled horror.
In 1998, under a Labour government and with the support of the Conservative Party, the Human Rights Act was introduced, incorporating the rights contained in the European Convention of Human Rights into British law. This meant that cases of human rights abuses could be taken to a UK court, rather than the European Court of Human Rights in Strasbourg. With this act, human rights legislation was brought home to the UK.
The Conservatives proposed at their conference in October 2014 to scrap the Human Rights Act in favour of a self-styled ‘British Bill of Rights’. They said they wanted to ‘put Britain first’, freeing the country from the lunacy of Strasbourg. The Tories have described a feeling amongst the British people of a lack of ownership of the Human Rights Act, and have raised the ongoing battle between the ECHR and the UK government over the totality of the UK government’s proposed ban on prisoners being allowed to vote. To match this, myths have proliferated in some parts of the media about misuses of the Human Rights Act, giving cartoonish examples in which human rights were invoked to shield criminals and foreigners from justice: terrorists claiming asylum in the UK; foreign convicted killers avoiding deportation; whole life sentences abolished. Contained in this myth-making is anti-EU rhetoric (although the EU is separate from the ECHR) and an unsubtle attempt to stir up xenophobia.
Article 8 of the Human Rights Act, which refers to the right for a private and family life to be respected, was cut down to a tabloid-friendly fable. In October 2011 Theresa May gave a speech in which she made an example of human rights legislation gone mad, in the case of an illegal immigrant who avoided deportation because he had a pet cat. She waggishly prefaced the story, ‘you couldn’t make it up’. However, fact-checking reporters discovered that the truth was somewhat different. The Bolivian man was not an illegal immigrant but had arrived in the UK on a student visa. He won his appeal against a Home Office decision to deport him after his visa expired, on the basis that it was a violation of his right to a family life. The cat exists (its name is Maya) – but was only mentioned briefly in the court case as evidence of the seriousness of his relationship with his British partner. At the time of the ruling, the Daily Mail ran the headline: ‘You’ve got a cat? Ok, you can stay in Britain, officials tell Bolivian immigrant’.
The Conservatives argue that a British Bill of Rights will return ‘common sense’ to these judgements. The bill is now on its seventh draft, without any concrete detail from the Tories on what it will contain. When a proposal to rewrite the law is pursued with no clear public statement on what the new legislation might be – and a case for change that is built on vague, subjective concepts (‘common sense’, ‘putting Britain first’) – justice is thoroughly undermined.
The Conservatives have said that the bill of rights would ensure that only ‘serious’ cases would be considered. They are suggesting that they rewrite the law so that they – politicians – would decide when human rights shall or shall not apply. How would they decide which cases are serious, and which are trivial? Would an organisation with influence be more likely to receive justice than a child? Would we only see retribution for victims who appeal to voters? It could be one hell of a popularity contest.
The idea at the very heart of human rights legislation – the principle that all humans are protected without discrimination – is under attack by our own government.
Much less visible in the media are examples in which the ECHR has protected British citizens from the actions of its own government. Here are two examples in which the ECHR has found the UK in violation of the European Convention of Human Rights:
In 1979, in the case of the Sunday Times versus the UK, the ECHR ruled that an injunction imposed on the Sunday Times which prevented them reporting on the Thalidomide scandal violated their right to freedom of expression.
In 2008, nearly one million innocent people had their DNA or fingerprints held by the police (a fifth of the total database). As the database grew, so did concern that the government was collecting information on the basis of presumed guilt. The ECHR stepped in, ruling that retaining the information of innocent people ‘could not be regarded as necessary in a democratic society’.
If we were to scrap the Human Rights Act, the British population would be at the mercy of a state with absolute sovereignty. The rhetoric recently used by David Cameron – ‘for too long, we have been […] saying to our citizens, “as long as you obey the law, we will leave you alone”‘ – should raise shrieking alarm bells in every one of us.
The complexities of implementing a new bill of rights to reflect ‘British values’ has now come to light following the election. Once we have opted out of an international standard for human rights, could we then with any legitimacy continue to tackle the violation of human rights in other countries? From the view beyond our borders to the view within: imposing a new concept of human rights on a union that is already shakily heading toward federalism would cause chaos.
After their landslide victory in Scotland, the SNP have reiterated their strong opposition to any change to the Human Rights Act; in Northern Ireland there has been vocal alarm about the damage that could be done to the fragile peace process. The Conservatives promised we were ‘better together’; it seems the greatest threat to the union they wished to preserve has come from their own manifesto. Furthermore, the Commission on a Bill of Rights appointed by the coalition government in 2011 found no evidence that the British people felt any lack of ownership of the Human Rights Act, and rather than hostility they found again and again (in Scotland, Northern Ireland, Wales and much of England) a feeling of warmth toward the ECHR and the principle of human rights without discrimination. If a ‘British Bill of Rights’ seems unworkable, sketchy, incoherent – that’s because it is.
At the Tory conference in 2014, David Cameron referred to the Human Rights Act as ‘Labour’s Human Rights Act’. This tells us just one thing: that this is about politics, not law. To be so plainly partisan, while proposing a major shift in the UK’s international standing, degrades our entire country.
The ECHR and the Human Rights Act do nothing less than maintain the standard for democratic justice in the world. It would be a tragedy if this was derailed, for the short-term machinations of a political party.
Amy Jardine was a delegate at a recent Young
Scotland Programme. Every month, SR publishes a piece from a new writer (two pieces this month)
By Amy Jardine | June 2015
