Law Review: So why do 75% of Sun readers want to get rid of the Human Rights Act? What is there not to like?

The Sun had a poll this morning suggesting that only one in four people wants to keep the Human Rights Act.
I carried out a very unscientific poll of my own this morning while I had coffee. I asked a few people having coffee at the cafe what they thought of the Human Rights Act. Two said they didn’t know anything about it. This is quite understandable – how many people really do, apart from lawyers, politicos and activists? Two said it had to be abolished, but admitted they had never read the Act or the European Convention and one person said it was absolutely vital we keep it – but he, too, admitted that he had never read the act or the convention. Intrigued by this, I rang up two lawyer friends. They are not Human Rights lawyers (Obviously, human rights lawyers tend to know what is in the Act and the Convention). They were only able to tell me about three of the freedoms enshrined in the convention. I was rather surprised – but not totally surprised. The truth of the matter is that most people don’t know the structure of the Convention or the Act, let alone the main provisions or the detail. This is totally understandable.  They have a broad ‘feel’ based on news and reading in the newspapers.

But have a look at the list of freedoms below and see what you think. Do they look unreasonable ideals to you? I would be surprised if you do think they are unreasonable ideals.

The Human Rights Act has, almost certainly, been misused and has thrown up many anomalies – but is this a reason to remove it from our law? `We can repeal the Human Rights Act, but we can’t take ourselves out of the European Convention on Human Rights without coming out of Europe. It may well be useful to have a British Bill of Rights, building on the provisions on the HRA – a Commission may well recommend this in time.

The Human Rights Act 1998

An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.

Few, I suspect, if any, would want to live in a country where basic freedoms are not protected with the full force of law.

A British Bill of Rights would have to be consistent with the European Convention – so how much different would it be from the Human Rights Act? I suspect that a Commission may well improve and increase the freedoms. I hope so – the more free we are, the happier and more respected a country we will be. I do agree that we need to get rid of useless, repressive,  laws and misuse of laws designed specifically to combat terror – but which appear to be being used against the people of our country rather than terrorists – ID, photography, protest, wheelie bins et al. I do agree that we need to remove a culture of compensation for everything and discard some of the more ludicrous aspects of political correctness.

Human Rights is important to everyone – the law guarantees our freedom from oppression by the state.

We have ‘relatively’  benign governments in this country – whatever your political leanings – compared to others less fortunate in other parts of the world.   Nick Clegg and his LIb-Dems are saying that we don’t just need to return power to people, we need to give people back their rights.  If he can pull this off, he is to be applauded.  I am only sorry that Labour has not done this – rather surprising given their original political roots.  Hopefully, Labour will have learned from the past 13 years in power that power has to be used wisely, be measured and considered, and not be responsive to knee jerking tabloid ranting….. and certainly  not be misused against the people governed.

The present Coalition government wants to make those freedoms more real, more practical and more usable – but in a balanced way so that our greatest protection – freedom from harm by others  – is properly addressed with open and effective laws designed for that purpose.  I don’t see a Coalition government destroying the concept of freedoms.    Clegg and his Lib-Dem colleagues are right to insist that this is their red line in the sand. Sabre rattling at election time is all very well, but we live a world of ‘real politik’.

Why do so many people ‘hate’ the Human Rights Act (and, of course the Convention)? I haven’t a clue – other than hatred of it whipped up tabloids concentrating on the more bizarre aspects and anomalies – which, is a minority of applications of the laws in daily practice.   Abuse of the Act and the more insane political correctness aspects can be addressed – but do we really want to go back to a pre European Convention law structure?

What, below, is there not to like? Not much, I suspect, will your answer if you are not familiar with the provisions of the Convention and the Human Rights Act. So why do  75% of Sun Readers polled want to get rid of the Act?  Are we living in a country populated by nutters and fascists? No… I suspect the truth of the matter – and I mean no criticism – is that most people don’t actually know how valuable the Convention and the Act is to our country and to maintaining peace in Europe, simply because they haven’t studied it in detail.  They do not see the wood for the trees (and, again I mean no criticism) because Tabloids don’t want to look at success or detail, they just want to bang on about unelected judges releasing terrorists into the community so they can kill everyone, including themselves… and thereby, sell a few more newspapers.  The Daily Mail, the Daily Express – and even The Sun and The Mirror are not exactly immune to such seductive money make ‘SCOOPS’.

Let a Commission get rid of some of the nonsense – but don’t be too quick to talk of ‘powers’ being handed to ‘unelected judges’. Our judges apply the law – that is what judges do.  The judges apply human rights law to protect us – and that has, on occasion, been difficult for Home Secretaries and other politicians who usually use the rubric that they are ‘disappointed’ when a decision of the courts doesn’t go their way.

If you aren’t familiar with the structure – here are the headings.  Wikipedia has more detail.  (I have left wikipedia references in below)

Article 1 – respecting rights

Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention “within their jurisdiction”.

Article 2 – life

Article 2 protects the right of every person to their life.

Article 3 – torture

Article 3 prohibits torture, and “inhuman or degrading treatment or punishment”. There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.

Article 4 – servitude

Article 4 prohibits slavery, servitude and forced labour

Article 5 – liberty and security

Article 5 provides that everyone has the right to liberty and security of person.

Article 6 – fair trial

Article 6 provides a detailed right to a fair trial

Article 7 – retrospectivity

Prohibits the retrospective criminalisation of acts and omissions.[edit]

Article 8 – privacy

Article 8 provides a right to respect for one’s “private and family life, his home and his correspondence

Article 9 – conscience and religion

Article 9 provides a right to freedom of thought, conscience and religion.

Article 10 – expression

Article 10 provides the right to freedom of expression, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. This right includes the freedom to hold opinions, and to receive and impart information and ideas.

Article 11 – association

Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

Article 12 – marriage

Article 12 provides a right for women and men of marriageable age to marry and establish a family.

Article 13 – effective remedy

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.

Article 14 – discrimination

Article 14 contains a prohibition of discrimination.

Article 15 – derogations

Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of “war or other public emergency threatening the life of the nation”.

Article 16 – aliens

Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.[16]

Article 17 – abuse of rights

Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention.

Article 18 – permitted restrictions

Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided.

Protocol 1, Article 1 – property

Article 1 provides for the rights to the peaceful enjoyment of one’s possessions.

Protocol 1, Article 2 – education

Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views.

Protocol 1, Article 3 – elections

Article 3 provides for the right to regular, free and fair elections.

Protocol 4 – civil imprisonment, free movement, expulsion

Article 1 prohibits the imprisonment of people for breach of a contract.

Protocol 6 – restriction of death penalty

Requires parties to restrict the application of the death penalty to times of war or “imminent threat of war”.

Protocol 7 – crime and family

  • Article 1 provides for a right to fair procedures for lawfully resident foreigners facing expulsion.
  • Article 2 provides for the right to appeal in criminal matters.
  • Article 3 provides for compensation for the victims of miscarriages of justice.
  • Article 4 prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (Double jeopardy).
  • Article 5 provides for equality between spouses.

Protocol 12 – discrimination

Applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities.

Protocol 13 – complete abolition of death penalty

Provides for the total abolition of the death penalty.[20]

11 thoughts on “Law Review: So why do 75% of Sun readers want to get rid of the Human Rights Act? What is there not to like?

  1. It’s almost as if people were fed a distorted and fearmongering view of the Human Rights Act by a media which has a vested interest in seeing, for example, article 8 fall by the wayside.

    Oh, and I’m guessing protocol 13 isn’t exactly flavour of the month for many Sun readers!

    Incidentally, I wrote a similar post to this last autumn. Sadly it doesn’t seem to have turned the tide of public debate on this issue – I hope you have more success. 😉

  2. SW… hadn’t read the judgment on that when I wrote this!

    John H – we can only observe and comment. We do not have the ear of even a small part of the British public and bloggers and tweeters tend to know a lot about these things anyway. Hey ho. It was ever thus!

  3. Well, I disagree with Article 16. Its application in the UK means that some foreigners with permanent leave to remain can’t vote at all – not even in local elections – while some (citizens of other EU states, cos they’re not considered foreigners under Art 16; or, I think, citizens of some Commonwealth countries) do get to vote in some elections.

    Given that tax is paid based on residency, it does seem a bit unfair – nay, a breach of their Human Rights!! – that the PLTR brigade don’t get any sort of say in their political representation.

    That said, I don’t suppose I’d jettison the entire Act on that basis…

  4. Good post. Those who do not follow the law (and that is probably most people) – do not realise just how ILLIBERAL our Parliament became. We have had illiberal legislation under both Conservative and Labour governments. Unfortunately, Labour turned to the dark side after the millennium and legislation has poured out much of which has both trampled on our rights and treated the individual with considerable disrespect.

    In the jungle of legislation, the Human Rights Act 1998 stands out as a major liberalising Act. It was New Labour’s finest hour.

  5. and it would never have happened without that labour government. like the minimum wage. funny how much we are happy to take for granted now that those like cameron and clegg (sum total of stuff done for the country absolutely bugger all the pair) have shone their happy smiles our way. clearly dave mis-spoke when he kept going on about abolition of hra… and on the manifesto pledge to a power of general competence and the undertaking to review within 5 years ALL domestic legislation to ensure that it is compatible (nice euro concept) with this proposed other bit of domestic legislation which must by definition be supreme… sure i read something in con and ad about that not working.

    and the laws that allowed BA to get an interim injunction (albeit overturned on appeal) would never have happened without the government that included the current lord chancellor et al. i note (even more cynically than usual) that as soon as the injunction was granted, BA walked out of negotiations. does that look like an employer who wants to find a negotiated solution? and given that it was granted on the balance of convenience, i take it that there was a suitable undertaking in costs by the applicant and that the union will now be compensated… (ahemmyarseahem). did anyone hear the order as to costs?

    but yes, no doubt we are about to have liberal and sensible laws coming from all sides. my thanks to the wishful thinking fairy for enlightening me.

  6. Obiter J / SW – Absolutely right. Even if Labour Home Secretaries were often ‘disappointed’ with judgments.

    HRA is always open ti improvement… hopefully even more rights?

  7. “So why do 75% of Sun readers want to get rid of the Human Rights Act?”.

    Because they are stupid.

    @John H: “It’s almost as if people were fed a distorted and fearmongering view of the Human Rights Act by a media which has a vested interest in seeing, for example, article 8 fall by the wayside”.

    Nothing like “it’s almost”, it is.

    Given the level of ignorance about the HRA, perhaps it should become a subject at school? Basic at primary level, more in depth coverage at junior and senior levels. We need to install a culture of human rights in this country.

    The LibCons now need to address the flaws in the Act, amend it to include Articles 1 and 13 of the Convention. Also, amend the Act to give the courts the power to strike down offending legislation which is incompatible.

  8. @Jailhouselawyer: in my defence, “it’s almost” was sarcasm. 😉

    As for ignorance re the HRA, one of the positive points in the coalition agreement on the HRA is this: “We will seek to promote a better understanding of the true scope of these obligations and liberties.”

    I assume that’s a Lib Dem insertion.

  9. Good post indeed.

    I think misreporting and myths are a big part of what’s gone wrong, but I think there’s more to it than just that.

    First of all a lot of politicians (including Labour ones) have slagged the Act off pretty well and contributed to myth-making themselves.

    Secondly, though, there ECHR and the Act do have effects people can legitimately object to, and which are not mythical at all.

    Take prisoners’ voting, for instance – seeing as John Hirst has commented above. It’s clear now that Strasbourg has said prisoners must be given the vote, and not just some prisoners must the great majority of them (thanks for letting me know about that recent case, John). I don’t have a beef with prisoners’ voting, but I don’t have a beef with the ban, either. It seems to me an area of legitimate policy choice for Parliament, and legitimate for John and others to campaign on. I think from a legal viewpoint it’s possible to argue that Strasbourg was wrong. From a non-legal viewpoint it’s easy to see how some people could think “how on earth does the HRA end up making us give prisoners the vote?”, especially since that’s far from obvious from looking at the actual text of Article 1, Protocol 3 which just says:

    The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

    In effect, Strasbourg is laying down a single policy for the whole of Europe on this. I think it’s things like that, too, that contribute to cynicism about the HRA and opposition to it.

    Finally I think some pro-HRA people take such an uncritical line towards it and judges that I think they undermine it, to be honest. Ming Campbell on #bbcqt last night was a bit of an example, almost saying he agreed with SIAC’s decision on deportation/torture whatever that decision was. I think a lot of people out there are sceptical of the idea that the country would be better run by judges, and that that’s not an especially right-wing attitude, either. I think people like that tend to mistrust unquestioning support of the HRA, too.

    I think those of us who support the Act need to be prepared to admit openly the fact that it has some effects people can reasonably object to, and that judges applying it, both here and abroad, don’t always get it right. Only that way do I think the middle ground can be won.

    • Carl – thanks for the comments, as always.

      I would despair if people were unquestioning about (a) the judiciary and (b) the HRA. There are some bizarre and anomalous results. The Siac deportation issue is but one.

      Perhaps the Act is overused with HR issues popping up everywhere – unintended consequences?

      The Commission may well kick reform of HRA into the long grass, but it may also lead to expansion and intelligent reform long term.

      Of equal importance is the proposals to control misuse of CCTV and terror legislation. Interesting that the new Home Affairs Committee is chaired by Clegg, with Ken Clarke LC as Deputy and Theresa May but a member? What are your thoughts on that?.

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