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Archive for March 15th, 2012

“You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty.”

-Mohandas Gandhi

Following the horrors of World War II, Sir Winston Churchill inspired,  and British MP and lawyer Sir David Maxwell-Fyfe led,  the establishment of the European Convention on Human Rights under the auspices of The Council of Europe (not to be confused with the European Union)  – a convention designed to ensure that no signatory state within post-war Europe would ever again be able to violate the basic fundamental freedoms and human rights of their citizens.  The Convention came into force in September 1953.

The Convention established The European Court of Human Rights. The Convention is now part of British law by virtue of The Human Rights Act 1998.

I start with the proposition that without the Convention on Human Rights,  our human rights would depend on  what  government and, in particular,  the remit of The Home Office, says they are – without international scrutiny. The potential abuse, I accept, may be more theoretical than real in our more enlightened 21st century age – but our past has not always been liberal or glorious in terms of the rights of our peoples.  Even a cursory knowledge of our history provides sufficient evidence to support this latter observation.

My second proposition is, perhaps, more controversial to some:  That we cannot trust government – or British judges constrained by British Law ( I use the term advisedly because The Human Rights Act applies throughout The United Kingdom)  because they have to apply  laws enacted by Parliament which they may find distasteful in personal belief terms –   to protect our rights and that European scrutiny under the Convention acts as a brake on potential  abuse of rights by the executive.

Thirdly, I put the proposition that while Britain may well take the Convention more seriously than some of our fellow European signatories, and there is some evidence to support this,  it is a poor argument to argue that default by others absolves us from the obligation to comply with the obligations we accepted by signing the Convention.

Last night I watched Andrew Neil’s television programme on  human rights:  Rights gone wrong (still available on iPlayer at the time of writing).  To be sure, there were faults in the analysis and scope.  Many on twitter expressed frustration.  Some, frustrated by media led coverage of the exceptional cases like Abu Qatada and prisoner votes, expressed anger that ‘unelected’ European judges should have so much power.

I was going to write a detailed analysis of  Andrew Neil’s programme.  I don’t need to because Rosalind English of 1 Crown Office Row has done an excellent analysis of the programme on The UK Human Rights blog.  I urge you to (a) watch Andrew Neil’s programme if you have not seen it and (b) Read Rosalind English’s review.

To the above, I add two  sub-propositions:

(a) Magna Carta, beloved by many who are not aware that barely four clauses of Magna Carta remain enshrined in our law, does not protect our human rights.  The barons were not over concerned with the rights of the majority of the subjects of the kingdom.

(b) Parliament is sovereign and has unfettered power to enact a British Bill of Rights.  Parliament can also take us out of the Council of Europe and our obligations under the Convention.  To do so would have political consequences in terms of our membership of ‘the European Union’. A British Bill of Rights, while we continue to be signatories to the European Convention on Human Rights, would still subordinate the British Bill of Rights and our UK Supreme Court to the rule of The European Court of Human Rights.

It is important to accept the possibility that our government may well try to restrict our human rights.  Secret justice, abolition of jury trials in less serious cases, reducing access to justice by restricting legal aid for  the more vulnerable in our society, the now renamed control orders, are not figments of an Orwellian dystopia – they are a very real, planned, actuality.   It is not unreasonable to argue that a future government may well find it most convenient to enact restrictive and repressive laws which erode our rights and freedoms –  unconstrained by an external power and Rule of Law under the European Convention.

The exceptional hard cases – Abu Qatada and prisoner votes,  to quote but two examples in Andrew Neil’s programme – raise the hackles of professional shield munching beserkers in Parliament and the ire of many whipped to frenzy by the tabloids, but the great good done by the enactment of human rights laws and our obligations under The European Convention are often forgotten in the red mist of jingoism

It was Lord Bingham,  a distinguished jurist and former Lord Chief Justice, who asked the famous question, which I  paraphrase:  “What human rights  (European Convention and our Human Rights Act) would you like to dispense with?”

We have to be careful what we wish for?  Syria – free to do as it pleases to the citizens of Syria with no enforceable international sanction. Unlikely to happen in Britain, of course – but why take the risk?

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