This week, the Home Secretary, Theresa May, announced that the government will be establishing a Commission to investigate creating a British Bill of Rights (or rather, another one, in addition to the one of 1688). Such a Bill would be aimed at replacing the Human Rights Act 1998 (the “HRA”), and by doing so, removing the requirement that the Courts and other public bodies act in a manner compatible with the European Convention of Human Rights (the “ECHR”). This is being sold to us on several grounds; in particular, that it is for Parliament to make laws, not the Courts, and certainly not some “bureaucratic, foreign” court in Strasbourg. In particular, issues have been raised over decisions by various Courts that prisoners should not automatically be disqualified from voting (in 2005) and more recently, that those on the Sex Offenders Register should have some form of appeal available to them.
These arguments are, of course, completely ridiculous. The actions of the Government are most troubling.
The Courts and the Law
In the UK, the Courts do make the law and they always have. It is the basic principle of common law; that the law is based on previous decisions of the Courts, and there are many cases where the domestic Courts have made substantial changes to the law (a classic case being Donoghue v Stevenson  – involving a dead snail – which introduced the modern concept of negligence) and it is a useful way of keeping laws up to date with social changes that Parliament refuses (for whatever reason) to deal with. There is nothing new, or dangerous, about judges making law – typically they have a lot more experience with the law than most politicians, they will have to deal with it in practice, and so they tend to make any changes very carefully, considering much broader consequences than Parliament might.
When dealing with Human Rights, though, the situation is slightly different. In other areas of law, if a Court rules in a way the government disagrees with, they can try to pass a law through Parliament changing the decision (as happened with Burmah Oil Company Ltd. v Lord Advocate , where the decision of the House of Lords was reversed by the War Damages Act 1965). While the Courts can rule that a law is incompatible with the ECHR (under s.4 of the Human Rights Act), such a declaration does not affect the validity of the law. However, the Government can be taken to the European Court of Human Rights (as first happened in the 1960s) for failing to uphold rights. This means that laws breaching human rights (such as the “stop and search” powers in s.44 of the Terrorism Act 2000) can remain in place, but the government could be required to pay compensation to the “victims” of such laws.
Another complaint raised against the ECHR is that it involves foreign judges meddling with UK law. Again, this argument holds little weight. The Convention itself was drafted under the direction of a British lawyer and MP, and was designed with the intention of enshrining many of the unwritten rights existing in England in a single document. The UK was the first country to sign up to the Convention and has since been joined by 46 other states; the members of the Council of Europe (unrelated to the European Union). While it is the case that 46 judges out of the 47 in the European Court of Human Rights (“ECrHR”) are from foreign countries, most relevant cases involving the Convention are dealt with by British judges, in UK courts who are required by s.3 of the HRA to interpret laws in a manner compatible with the ECHR wherever possible.
In the case from April last year, regarding the Sex Offenders Register (R (on the application of F & Anor) v Secretary of State for the Home Department ), the ruling was given by the judges in the Supreme Court; the highest Court in the country. There is nothing “foreign” about the decision or the judges involved.
Why We Need the ECHR
The reasons given by the Government for abandoning the ECHR are particularly flimsy; so what are the real reasons behind this? Once again, the Government has found itself in a position where the Courts are getting in the way of its plans. Theresa May is the latest in a long line of Home Secretaries who have complained about judges curbing their power by protecting the rights of individuals (in fact, in M v Home Office , the House of Lords upheld a Court of Appeal decision finding the Home Secretary in contempt of court for deporting someone while their case was still being reviewed). The ECrHR is just a particularly easy target due to the many incorrect beliefs the public have about it – this argument is really about one thing; Power.
The ECHR was set up in the 1950s by the newly formed Council of Europe to prevent the atrocities of the second world war from ever being repeated. At its most basic, the Convention grants fundamental rights to individuals in the countries who are members (including any foreigners) protecting them from the State they are in. The UK’s commitments to the ECHR are the only thing (legally) protecting us from our Government. Any attempt by a Government to remove these protections should be examined very closely. To be blunt, it is very worrying to see this attack on our basic rights being unopposed (and even supported) by large parts of the media and public.
“But Parliament is Democratic, Unlike the Courts”
This is a common argument for suggesting that Parliament should be able to override judges (whether in the UK, Strasbourg or Luxembourg). At first glance, this is quite convincing; after all, Parliament is elected by the people, whereas judges are appointed by the Crown, it should be up to them to have the last word in matters of justice. However, this overlooks a key function the judiciary plays in protecting individuals from the majority and preventing mob justice. In addition, the Courts are also involved in adding some measure of control over the government who, in legal theory, have near-absolute power once elected. The judges in the higher courts will have decades of experience in law, dealing with cases, trying to find justice. They are not subject to the temporary fluctuations in the public mood, and are not just looking for winning more votes in the next election.
“But Criminals Don’t Deserve Rights”
Usually, when criticism of the Human Rights Act surfaces, particularly emotive issues are used. Most recently, the media (and politicians) have focused on how the ECHR is being used for the benefit of prisoners (with regard to them voting), murderers (being deported) and sex offenders (having the right to a review of being on the register). It has been claimed that human rights legislation “is being used to promote the rights of bad people, over the rights of good people.” Once again, this seems to be quite an important issue and yet it manages to completely miss the point. This is not about protecting criminals at the expense of everyone else, this is about protecting all of us.
Human rights are there to protect humans from the state. They are, and should be, inalienable and indivisible. This means that one does not simply take them away from certain people, even criminals. As soon as they start being applied only to certain types of people, decided by the state, they cease to be human rights and become mere privileges. Even the most evil person in the world should have the same rights as the rest of us – that is what makes them human rights. Sometimes it is necessary to balance these rights against each other (a classic example being the frequent conflicts between Article 8 of the ECHR, the right to respect for private and family life and Article 10, the right to freedom of expression), but this balancing act needs to be done (which is the job of the courts) – one cannot just assert that one person’s rights are not important. It should be noted that the right to liberty (Article 2 of the ECHR) includes specific exemptions for convicted criminals among other things (including forcing young people to attend school).
Human Rights are fundamental, inalienable and indivisible rights that protect all of us, equally. Any government that wants to remove such protection is demonstrating a thirst for power that is unhealthy and dangerous in a civilised society. It is important that the human rights of any one person, even a criminal, are upheld – as soon as we say it is acceptable to take away rights from just one person, we are all put at risk.