I suspect if you ask most Brits what they understood by Human Rights, they would be very clear in their answer. I also suspect most people regardless of their political view would be opposed to such practices as torture, being held without charge, fair trials, freedom of speech and the like.
It is also a commonly held view that Human Rights in the United Kingdom were somehow introduced by ‘requiring’ King John into signing the Magna Carta in 1215. Whilst that is one view of history, it isn’t entirely supported by the facts.
Magna Carter (the Great Charter) of 1215 could be seen as tackling Human Rights of its day. In particular, it dealt with protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown.
However, these rights were hardly universal – note it only protected Barons from illegal imprisonment and access to swift justice. The lesser known fact is that even this charter was restating existing rights which had existed from Norman times.
In recent weeks and months the focus of debate has settled on the protection of the Human Rights Act 1998 (ECHR) which incorporated the rights contained within the European Convention of Human Rights into UK Law.
Whatever your view on the ECHR it has sometimes been presented as if there had been no human rights in Britain prior to 1998. It also, in my opinion, overlooks the contribution to protecting the citizen made by the Bill of Rights 1689, the Petition of Rights, the Habeas Corpus Act 1679 and the Parliament Acts of 1911 and 1949. These taken in the round form the basis of the unwritten British constitution.
In fact, the English (as it then was) Bill of Rights is considered to have strongly influenced the United States Bill of Rights and the basis of the European Convention on Human Rights itself.
With the new conservative led government promising to replace the European Convention with a new British Bill of Rights, this whole area has become politically charged and wrapped up with views on Europe and Britain’s place (or not) in the European Union.
Whilst to some extent that connection is inevitable, is it possible to feel (as I do) that I am both British and European – albeit that my European identity is a geographic belonging above anything else. If so, can I still feel a good European and have some sympathy with the desire for national Courts to have the final say on some aspects of law, potentially including the definition of Human Rights?
One of the difficulties in discussing this whole area is the complexity of the various European Courts, their relationship with national Courts and how conventions fit within that framework. This rather etherial and in some senses technical miasma makes the rational discussion of options difficult to find.
Whilst I never thought I would be recommending Jacob Rees-Mogg (a member of Parliament recently described as a walking anachronism) as a clear and objective reference point, this is the position in which I find myself. Whether or not you agree with his arguments, this interview is the closest I have found to a rational outline of the available options. For those interested in the detail of the debate, Jacob Rees-Mogg discusses the possibilities here in a clip from the BBC’s Daily Politics.
So given the Gordian knot that is likely to be found in an attempt to amend the status quo, what exactly is wrong with the current state of affairs. Well, again that depends on your political and personal perspective on such matters as judicial accountability and the role of the nation state v. the European Union.
The most commonly cited example may be that of the half Bolivian cat. Although somewhat over-egged, it is an example used by those who think that ‘foreign’ judges have taken the concept of Human Rights a little too far. In this case (2009) a Bolivian found himself about to be deported. (It is unclear whether this was for a criminal matter or over staying his visa etc). However, he appealed his deportation on the basis that it breached his Human Rights – namely the right to a family life.
The case revolved around his relationship (of roughly six months). As part of this relationship, he had purchased a cat which was used as contributory evidence to prove that he had fully integrated into the country. Whilst the role of the cat is often over-stated, the relationship was found to be sufficient to prevent his deportation on Human Rights Grounds.
Others, of which I’m usually but not consistently one, believe that a sovereign nation’s Supreme Court should be just that. For me it isn’t a question of ‘johnny foreigner’ having over-extended the legislation or not, it’s more a question of national sovereignty. I have no issue with eminently sensible conventions (including ECHR and those of the UN for example) being referenced and considered as required. I just happen to think that should be done by each Nation State.
If the Convention on Human Rights was a little more focused I might take a different view. One might think, for example, that Human Rights applied to Humans – but they apply equally to bodies Corporate – so companies such as IBM, HSBC and Starbucks find themselves protected by Human Rights conventions.
Whilst I have no issue with robust legal protection for companies in terms of their intellectual property, copyright, trading etc, it is hard to see how I can impact on the Human RIghts of a corporate body.
What is clear, whether you make the national sovereignty argument, object to the ‘stretching’ of legal definitions or simply object to a supra-national Court this topic is set to dominate British politics over the next 3-4 months, As is often the case, you wait some time for a contentious Human Rights case and then three come along all at once.
Over the next few weeks, three high profile cases could provide further fuel to the fire and reinvigorate the calls (at least in the right wing of the Conservative party) to exit from the Court or the Convention or both.
The first case referred to the grand chamber involves three men who attempted to carry out suicide bombings in the London Underground. They received sentences of 40 years. However, during their arrest they were initially refused access to a lawyer to allow for an urgent interview (the ticking bomb interview). Initially, the Court held that they had not been prevented from having a fair trial. However, this is now being appealed to Strasbourg
The second matter relates to “whole-life tariffs” – life sentences, where the defendant is told they will never be released from Jail. In essence, the European Court will assess whether this sits well with the words of lord chief justice, Lord Thomas of Cwmgieddwhen he said that “the law of England and Wales provides an offender hope, or the possibility of release, in exceptional circumstances” If they find this is not the case, this could end whole-life tariffs in their current form.
The final case relates to the shooting of Jean Charles de Menezes by Metropolitan police officers in . Lawyers representing his family claim that the failure to prosecute individual officers for the shooting breached Menezes’s rights under article 2 of the human rights convention.
With such incendiary cases about to reach the Courts, Human Rights may again be next month’s political football, Given this, my qualms over wishing to see these decisions made at a national level can sit on the back burner until I see exactly which way the legal winds are blowing.
One thing is fairly certain – we better get used to the news being heavily focused on what we mean by and how we interpret Human Rights.