Without the Convention on Human Rights – our human rights depend on what our government says they are

“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?

18 thoughts on “Without the Convention on Human Rights – our human rights depend on what our government says they are

  1. So you’re so stupid that you think that what is happening in Syria is the freedom-loving people being repressed by a vile government?

  2. In so far as Human Rights Law is an attempt to codify (and protect) the fundamental tenets of what is to be “free” (with respect to actions and interventions) there will always be an internal conflict.

    Freedom cannot be defined, axiomatically, as the natural consequence of our presumed “enlightenment”. Any codification of freedom, based upon such an “enlightened theory”, will innevitably fall upon others as a constraint, if not a dictat.

    The so called ‘enlightened code/ethic’ has already made the presumption (and the identification) of those backward ‘others’ who, well, aren’t quite there yet – still in the dark ages; perhaps still swayed by symbols, rites and hierarchic practice.

    Within such terms, conflict is innevitable: One person’s code of freedom is another’s constraint. And this won’t be decided by science any more than it will by ‘belief’. The problem pertains to practice: how people choose to live in order to sustain the hope of freedom. Neither Law nor even psychology (god help us) can adjudicate upon belief (it is a red-herring). We adjudicate upon practice – ie upon what it seems “reasonable to us” for people to do.

    Is martyrdom reasonable? Is it reasonable to suppose that wearing a Burka has any bearing upon freedom? Correlatively, is it reasonable that we ‘enlightened’ folk should presume to adjudicate, not upon belief (which is impossible) but upon the practices of those cultures whose freedom has found different expression from our own. Sure, we can say we ‘tolerate’ – *within reason* – but are we ourselves (Enlightened Europeans) really such a standard of reasonable practice? History says not.

    Other than by casting our neighbours in the role of backward heathen (the unenlightened ones), can we demonstrate our own reason?

    Such is the continual discourse of Human Rights: the presumption of one Universal Code that can ‘trump’ the others.

    Your quote from Gandhi becomes entirely inappropriate in this context. “Faith in Humanity” is not an appeal to Law or to Adjudication. It is exactly what it says: it is *Faith*. And in Gandhi’s case (especially in Gandhi’s case) such faith will always eschew the Universal Code: these over-arching Conventions innevitably lead to the acts of Empire. Gandhi believed in the village, that is to say in the local: local inscriptions, local practices and local structures.

    Global Codes are a shortcut that take us, innevitably, into conflict (whatever their intention).

    The long hard work facing europe, I think, is to build without shortcuts – from the village (so to speak!). It is immensely difficult to envisage, but compared to the Globalist future that, for example, still beguiles the US, Europe is infinitely more interesting!

  3. “Formerly there were those who said: You believe things that are incomprehensible, inconsistent, impossible because we have commanded you to believe them; go then and do what is unjust because we command it. Such people show admirable reasoning. Truly, whoever is able to make you absurd is able to make you unjust. If the God-given understanding of your mind does not resist a demand to believe what is impossible, then you will not resist a demand to do wrong to that God-given sense of justice in your heart. As soon as one faculty of your soul has been dominated, other faculties will follow as well. And from this derives all those crimes of religion which have overrun the world.” Voltaire, Questions sur les miracles (1765)

    Alternative condensed translation: “Those who can make you believe absurdities, can make you commit atrocities.”

  4. Antonin,

    Voltaire makes his own absurdity with: “the God-given understanding of your mind…”. This is something that he himself can only “make us believe.”

    He seeks to ‘dominate soul’ as does every other preacher of Ideals.

    I cannot be made to believe that ‘understanding’ has come from God. People create understanding; it is practice (research), not decree (neither sacred nor profane).

    Neither will I believe in the possibilty of a Universal Convention, created in Law, that can assure human freedom as opposed to constraint. This is the point of Marx’s denunciation: “it is a little thing”: The question of God misses the point.

    All Universals miss the point (and become Empire); hence Gandhi’s emphasis upon the village.

    We must work from the ground up. Literally.

  5. Paul, I’m an atheist. I don’t believe in gods of men, or men masquerading as gods. What I do believe in is in the individual’s freedom of choice to inflict, or renounce, pain and suffering. The Rule of Law is an ideal that is prone to the vicissitudes of state power, tribalism and nationalism. This, to me, is an ineluctable and universal truth. Antonin

  6. Thanks for the reply.

    I agree entirely. Whether such a truth is ineluctable, I don’t know; but I do think that our identification with ‘tribes’ (villages again!) can be a thing of beauty and not just division. Europe is uniquely rich in this respect – hence my mistrust of a Universal Convention.

    Religion though can take care of itself! I have to say I relate as little to atheism as I do to theism!

    All the best, Paul

  7. It is not just down to laws, though. Is the great British public happy to surrender its rights to government?

    “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
    James Madison

  8. My take on this is that advocates of human rights law should be careful what they wish for. It’s nice to have the ECHR there in the background, but it merely codifies rather than embodies human rights. If human rights campaigners were to somehow turn the tide in their favour, there is the real danger that the common law would be sidelined and we will end up with extensive codification of rights, abandoning the flexibility and the power provided by the common law. Codified rights can be abused/manipulated more easily than common law rights. Look at the Citizens United ruling in the US Supreme Court as an example of using the constitutional protection of free speech to protect political campaign contributions by corporations and unions.

    I believe that we rely on codified human rights laws to protect fundamental rights at our peril. Fortunately, decisions in the House of Lords / Privy Council / Supreme Court on human rights issues have often emphasised the concurrent fundamental rights under the common law. The Proportionality test outlined in de Freitas is predicated on fundamental rights, not just ECHR rights; and the principles of statutory interpretation are also predicated on the basis that an unclear statute cannot have been intended to intefere with fundamental rights.

    The words of Lord Cooke of Thorndon in the House of Lords in Daly are instructive:

    30. First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
    31. To essay any list of these fundamental, perhaps ultimately universal, rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The point that I am emphasising is that the common law goes so deep.

  9. This post is a timely reminder of what could be at stake in the debate over the future of human rights in the UK.

    Does anyone seriously think that this British government is actually seeking to enhance the rights of the British people? Their actions speak loud and clear that this is not the case – e.g. massive cuts to legal aid provision thereby depriving many of access to justice.

    The government is actually about enhancing its own power over the people and the sidelining of Strasbourg is an essential element in this strategy.

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  11. One of the issues I find concerning is the wider effect that current Government attitudes towards convention rights and Strasourg will have throughout Europe. As the program clearly states, some of the signatory states to the convention have less than acceptable records on human rights as it is, with many including Russia simply choosing to ignore their obligations and rulings of the ECtHR while remaining signatories, a circumstance which is purely political without any concern for the purpose of the convention.
    Our own governments insular and politically motivated concerns regarding Strasbourg having too much power and the associated attempt to effect change through the council of Europe to limit cases going to the court could if successful completely undermine the convention not just in the UK but throughout Europe. Any weakening of the conventions application and availability in states such as Russia, Turkey etc would undoubtedly render the convention and ECtHR even more pointless than they already are in these states, which would reflect back on those states that do adhere to the convention, who would be even more justified in questioning its validity.
    We should not forget that the convention is there to protect the public against the state within the jurisdiction of human rights law, and that human rights do not and should not take into consideration whether or not the subject of them is a criminal or not. Governments will naturally seek to avoid contravening convention rights, and to avoid them where possible, and will often therefore seek to limit them in some way or another.
    This applies particularly today when many if not all governments throughout Europe are seeking to implement massive and arguably necessary austerity measures which could nonetheless have adverse and highly undersirable implications for citizens throughout their respective states, thereby highlighting the importance of the convention and the HRA more now than ever before.

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  14. Issues that scream out to me are: is Britain too attached to its “constitution” and principle of Parliamentary sovereignty? Yes. Maybe it is time that we focus upon the real issue that is RIGHTS and stop fearing the development of a new/evolving constitution. Gearty, Fenwick and Waldron all urge that we refocus upon the social significance of rights in its substantive form rather than the wider issues. Whilst such views oversimplify the conundrum that Britain faces today, it is a basic starting point. After all, we can hardly turn around and say that our British constitution has been a rigorous and measurable one since day one- if so, Dicey would have been most proud. Our human rights depend upon what the judges interpret them to be- and that seems to be of greater concern today than ever. Particularly in light of David Cameron’s urge for a British bill of rights.

  15. Pingback: Why does the Government wish to issue a British Bill of Rights? by Alisdair MacPherson « British Mensa Law SIG Blog

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