Law Review: What is the government’s agenda on human rights?

We have had the wisdom of Parliament in the form of 234 MPs voting against proposals to comply with the European Court of Human Rights judgment on prisoner votes. We have had a rather surprising intervention from the leading judge of that court, Jean-Paul Costa, stating that  Britain will be resorting to the tactics of the Greek colonels in 1967 if it does not comply with ECHR ruling and now we have Home Secretary Theresa May stating that the  Government is “appalled” by sex offender ruling.”   British politicians have now attacked the European Court of Human Rights and our own judiciary and, it would seem, they are going for the triple crown by setting up a Commission to look into the establishment of a British Bill of Rights.

Obiter J has a considered view on this matter which is worth reading and The UK Human Rights blog, also.

What is of interest to me in this post is the public perception being built up that we are at the mercy of ‘unelected judges’, European and home grown, and that somehow that these laws we signed up to are being foisted on us by dark forces elsewhere. This is not the case and it is worrying that public statements by politicians, all of whom should know better, are becoming increasingly ‘economical with the truth’ in the race to win hearts and minds of voters.

Obiter J makes the valid (and important) point: “Even allowing for political rhetoric, such an inaccurate statement about the role of the courts is disappointing.  There is no question that it is Parliament which makes the law.  Parliament has told the judges to apply the European Convention and Parliament has permitted judges to make a declaration that a legislative provision is incompatible with the Convention.  The judges have not granted themselves such powers and such powers do not exist in the English common law system.”

I have made the point before, a point well known to all lawyers and many non-lawyers, that Parliament is at the pinnacle of law making in this country and is supreme in the sense that it may legislate to come out of the European Convention and even the European Union itself if it so chooses.

In the meantime a degree of honesty in public statements and briefings to the press, and responsible and accurate reporting by the press, is not an unreasonable request to make given the importance of these issues.  We do have a right to be told the truth?

I hope regular readers will forgive me for repeating ‘the bleedin obvious’,  but it appears that some politicians don’t really know what they are talking about and if they do, they are misleading the public on the true position.  Unfortunately, I suspect, politicians are too busy briefing the press to let mere law get in the way, let alone finding time to read the many law blogs and articles written by experienced legal journalists out there which address these issues carefully. Here endeth…today’s rant.

British political populism risks conflict with Europe over human rights court

Dr Cian Murphy, King’s College London in The Guardian: Parliament is resurgent and a British bill of rights would be welcome, but ‘constitutional chauvinism’ will hurt Britain as well as the human rights convention

To defend the Human Rights Act 1998 (HRA 1998) it is necessary to counter the falsehoods and distortions of those who misrepresent it…

The New Law Journal reports: Geoffrey Bindman calls on the government to defend the Human Rights Act

To defend the Human Rights Act 1998 (HRA 1998) it is necessary to counter the falsehoods and distortions of those who misrepresent it. Regrettably the prime minister himself is among those who have done so, as well as more predictable elements of the media, particularly the Daily Mail.

AND FINALLY…. this from The Daily Mail

Philip Davies, the Conservative MP for Shipley said: ‘After votes for prisoners, we now have the potential for human rights legislation to give sex offenders the opportunity to come off the sex offenders register.

‘Is the Prime Minister aware that my constituents are sick to the back teeth of the human rights of criminals and prisoners being put before the rights of law-abiding citizens in this country?

‘Is it not time that we scrapped the Human Rights Act and, if necessary, withdrew from the European convention on human rights?’ Spot on.

Cameron replied: ‘My hon. Friend speaks for many people in saying how completely offensive it is, once again, to have a ruling by a court that flies in the face of common sense. Requiring serious sexual offenders to sign the register for life, as they now do, has broad support across this House and across the country.

‘I am appalled by the Supreme Court ruling. We will take the minimum possible approach to this ruling and use the opportunity to close some loopholes in the sex offenders register.

‘I can also tell my hon. Friend that a commission will be established imminently to look at a British Bill of Rights, because it is about time we ensured that decisions are made in this Parliament rather than in the courts.’

Mon dieu…. whatever next?  – just let the Police sort everything out and not bother about courts?  Or… a bit more political grandstanding?

10 thoughts on “Law Review: What is the government’s agenda on human rights?

  1. I couldn’t agree more. Surely misleading the public regarding internal opposition and external powers is what certain tabloids are there for…

  2. The Daily Mail and its like minded companions have finally seized power!!! We are all up the swannee without a paddle now that big dave is prepared to give vent to their pent up frustrations, with the following ringing ever louder in the ears of the big society:

    “Human Rights be DAMNED!! How very DARE those we choose to castigate even have the remotest cause to consider that the exercise of these PRIVILAGES should extend to them?!

    The very IDEA!!”

    ( “cue lots of puffing and fafafaffaahhhing*)

  3. Whilst judges don’t set statute law they do, of course, interpret it. In some cases the results and parliament’s intentions are very clear. However, in others, the latitude for interpretations is very wide. This happens explicitly when different aspects of Human Rights are in conflict. For example, those rights regarding freedoms of expression and privacy.

    Of course it is open to Parliament to legislate to clarify its intentions, but then there are obvious issues when the issue at hand is one where there is not obvious way for democratic wishes to be implemented short of the nuclear option of leaving treaties. However, for those that say that Parliament is still sovereign and then complain because consideration is given to using that sovereignty, then they surely can’t have it both ways. At that point it becomes a political issue. By all means argue the merits of a given decision (e.g. prisoner votes), or that the wider political penalties of using Parliament’s sovereignty are too high to be exercised, but equally judges should be very careful of second-guessing what is more appropriately decided in a democratic forum. I also detect something of a condescending attitude to views expressed by Parliament when it doesn’t suit some individual’s personal views. If Parliament sometime expresses a note of disagreement to the interpretations of a law by judges, then fair enough.

    I also suspect that when the judiciary have a choice between extending their area of competence by make a judgement rather than declining to say they have that power, they will tend to the former. It seems to be something innate in human nature.

    I think it would be disingenuous to claim that judges do not sometimes interpret laws in ways which suit their own particular viewpoints. This is a concept well understood in the US where the political and social outlook of Supreme Court judges is known to be decisive in matters regarding the interpretation of the constitution and some of these are to a liberal agenda, and some to a more conservative one.

    I should add that at certain times I have been infuriated with decisions made with judges where I know full well that a different individual may well have come to a another conclusion. After all, if judges didn’t have differing views, why would we have such a hierarchy of appeal levels? Frankly, some of this comes down to personal, albeit informed opinion. However, don’t say that to a judge in court as this example shows…

    Ultimately I think the idea that “unelected” judges don’t have a major part to play in the de-facto application and meaning of statute law is unsupportable. I also think that it’s equally unsupportable to claim that laws are interpreted in ways far beyond what intentions were of those that originally drafted the legislation.

  4. I believe the Tories are following the so-called “Hokey Cokey stratagem” on the issue. For those who are not already intimate with its operation, its basic lineaments are as follows:

    * You put your left leg in
    * Your left leg out
    * In, out, in, out,
    * you shake it all about.
    * You do the Hokey Cokey and you turn around
    * That’s what it’s all about…

  5. I’m going to play, if not quite devil’s advocate, at least a little impishly…

    Law, at the end of the day, is about reason, and necessarily so. It is by the appeal to reason that law is distinguished from arbitrary sanction; that is why jurisprudence in academic terms is a branch of, or at the very least a kissing-cousin of philosophy.

    Politics, however, particularly democratic politics, is about emotion – reason takes a back seat. Most people vote according to their emotions, principally hope and fear – and sometimes (although we trust not too often) even anger. Judgments based on those emotions will be overturned; votes based on them, however, are 100% valid.

    This, of course, is why Plato was against democracy and why the American Founding Fathers gave the Supreme Court equal status with the legislature and the executive.

    The” No to AV Campaign” started this week.
    The Sun says no, The Mail says no, both say it’s too expensive. Labour mostly say no, conservatives say no and Clegg says he really wanted PR.
    The point is that the machinery is in place for a referendum and the Irish “about turn” is proof that an EU referendum can be rigged.
    To rig a referendum, first create a problem, or reinvent an old one.
    THE VOTES FOR PRISONER’S BILL. An issue abhorrent to the British Public.
    The idea of murderers and rapists being able to vote uses extreme examples to make the point, no mention of the prisoner who didn’t pay their TV license.
    This issue was around when Cameron lost what should have been a walkover election. He had broken his cast iron promise and knew at this point that the EU membership issue would not go away without a referendum.
    An assault on the Court of human rights is underway. Add in the sex offenders register issue to stir it up. I believe Cameron will manipulate anti EU feeling enough to justify adding an EU referendum onto the AV one, at the last moment.
    Once the EU referendum is in place, Cameron will win his battle with the Court of Human rights, and fight to keep EU membership.
    Cameron needs a snap referendum. Lord Pearson recently asked for a cost analysis of EU membership. It was refused. When they were in power, Labour repeatedly refused such requests. The sums will not add up. The arguments for staying in will not bear lengthy scrutiny.

  7. “The Mail says no” is, with respect, hardly pointing to a rigorous opinion. Never in the course of tabloid journalism have so many been so intentionally misinformed by so few.

    I’m sure there must be a couple of lawyers working at these places who could set their wayward prejudice-formers to rights concerning the UK’s association of various international bodies, especially the way in which this affects our law (has anyone seen “margin of interpretation” in the Mail, Sun or Telegraph recently? Or is this too difficult?), and more particularly the very clear limits which other European (in the broadest sense) countries’ constitutions put on the encroachment, if that is the right word, of international bodies into their national law. It makes very interesting reading, particularly for the Germans and French constitutions, and makes the British populist viewpoint all the more puzzling, especially when viewed from my Dutch eyrie.

    I expect the more informed readers of blawgs to be aware of this, whatever their viewpoints (I am instinctively pro-European) but I despair at making this knowledge more widely known. The denizens of Northcliffe House are not above censoring attempts to state the bleedin’ obvious in their comments sections. Their journos are certainly unburdened by any knowledge of their subject 🙁

    Mark Twain quipped that the man who won’t read has no advantage over the man who can’t read, and Henry Huxley worried that if a little knowledge is a dangerous thing, who has so much as to be out of danger. But if such nonsense is being talked about fundamentals such as human rights law, the EU and this apparent problem with non-elected judges (should we elect Cheryl Cole to the Supreme Court? It would pull in the TV ratings!), the people who know what they’re talking about somehow have to raise the level of knowledge and make people read it. Don’t we?

    Sorry, I’m ranting myself on someone else’s blog. But law is important.

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