Can a ‘Good European’ support the Conservative view on the Human Rights Act?

Magna Carta

Magna Carta 1215

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.

English Bill of Rights 1689

English Bill of Rights 1689

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.

catThe 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.

starbucksIf 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.

Does the new UK Drugs Bill owe more to Chicago or to Rome ?

QueenieIn this weeks Queens speech details of a new Bill to tackle the growing availability of ‘legal highs’ was outlined.

At present, numerous ‘head shops’ and on line suppliers are able to offer chemical substances which sit just outside the current legal definition of a controlled substance. They do this by manufacturing a substance subtly different to those already outlined (perhaps one or two molecules different) and in doing so defeat the current legislation.

This cat and mouse creation, classification and banning has been the status quo in the UK for a number of years. As one chemical is being banned chemists are already working on the next two replacements. The Bill proposes a radically different approach to tackling this problem. But can the government expect a rough trip in introducing it ?

lhighI suspect any objective observer (regardless of their view on drugs) would be concerned with the growth of legal highs within the UK over the past ten years.

The vast majority of these compounds are developed and made in China, their exact content is often unclear and obviously there is no certainly of the quality of the alleged ingredients. They undoubtedly present a risk to some particularly when mixed with other substances, alcohol and/or poor judgement.

The growth in online suppliers and the emergence of ‘head shops’ in the UK specialising in their sale has been remarkable, particularly over the past 5 years. Most of the compounds are clearly marked not for human consumption and are sold as plant foods, household chemicals, fish food or bath salts. The range of potential uses reported is quite remarkable. They have now become so commonplace that most towns have at least one outlet with the alternative of delivery by post available via the internet.

ProfnuWhilst there have undoubtedly been deaths caused by legal highs, former governmental drugs advisor Prof. David Nutt believes these have been overstated.

His research indicates that recorded figures have erroneously included deaths caused by substances already illegal in the UK as well as compounds such as anabolic steroids which are not psychoactive.

Professor Nutt claims the figures actually indicate deaths from legal highs in the range of 12 to 20 cases per annum. Whilst these are clearly each personal tragedies and a huge waste of life and potential, does this level of fatality justify the change in approach being proposed by the new legislation. Certainly a question worth considering. This is particularly true when these are measured against the estimated 3,000 deaths caused by alcohol and the 20,000 caused by tobacco each year in the UK. Ironically, both alcohol and tobacco  have been specifically excluded from the proposed legislation.

So what is so different about the new legislative approach when contrasted to the existing Misuse of Drugs Act 1971? In simple terms this can be summarised in one word – specificity.

At present substances are banned by name or by drug class meaning that anything outside those classifications is lawful. The new approach seeks to turn this model on its head by stating that (in terms) any mind altering or psychoactive substance will be unlawful with certain exclusions.

prohibitionUnfortunately, history is not replete with examples of prohibition being an effective tool to reduce the demand of elicit substances of which governments disapproved.

Chicago in the 1920’s is perhaps the best known example when alcohol prohibition pushed supply into the hands of Al Capone and assorted criminal gangs. The supply was not significantly reduced with the speakeasy being a means of circumnavigating the law and continuing to provide alcohol through a chain of underground ‘coffee shops’.

The government of the time persisted with the total prohibition of alcohol until social pressures and the risk of the government being seen as a laughing stock overtook events and the ban was lifted, replaced instead with a series of legislatively backed licensing approaches.

Medical professionals in the UK have not been slow to spot the parallels, here Dr Christian Jessen debates the likely impact of imposing such a blanket ban in the UK without considering the implications on those drafting and enforcing the law.

Few people would argue that Governments have a legitimate interest and right to protect its citizens (at least its vulnerable citizens) and this legislation could be seen as falling into that category of action. So has Britain any lessons to learn from other countries who have taken this path before them? The answer would appear to be yes, but so far it has chosen to ignore them.

raveThe United States had a similar issue at the height of the rave craze of the 1980’s and passed a similarly wide ranging Act (Federal Analogue Act 1986).

That law criminalised any substance that was ‘substantially similar’ to a controlled drug if it was designed for human consumption.  It automatically banned the compound if its effects were ‘similar to or greater than’ a drug that has already been made illegal’.

The issue with the American Act is (I would suggest) the same as this broad brush UK Bill would face. Most half competent lawyers could demolish such imprecise phrasing as ‘substantially similar’ and who is to say whether any drug has a similar or greater effect than another on you, me or anyone else?

Both Poland and Ireland have also introduced similarly prohibitive legislation, although both find themselves fighting cases revolving around the definition of words and re-drafting the legislation – almost as many times as they would keeping up with new named substances.

Finally, the drafting of the final Act will be a poison chalice for some poor group of civil servants. At present the proposal would be to make any psychoactive substance or compound altering brain chemistry unlawful. Tne problem is that definition may simply be too broad to be workable.

p_saffron-bonbons_1659386cAs previously stated, alcohol and tobacco have been excluded, however, substances as noxious and harmful as chocolate, saffron and sage could fall within the relevant definition.

Initial responses from the government lawyers is to simply exclude foodstuffs. – Really? How long before those same chemists come up with some ‘foodstuffs’ to circumvent this particular piece of legislation?

Some clinical psychologists also argue that many non-chemical items can be classed as mind altering substances, at least they are designed (and can achieve) a change in brain chemistry.

The whole history or propaganda is based on the aim of changing the mind state. Few would argue that the racier forms of literature or selected DVD’s can also induce similar reactions. Presumably these aren’t included in the same legislation despite probably fitting the rather loose definitions being suggested.

portugalI for one would urge governments and legislators to engage in a long overdue adult and rational debate on drugs policy in the UK.  It would appear that it is a topic which cannot be discussed by the political classes.

Far from recommending or proposing any particular act or outcome, I would just like an evidence based assessment of the options looking at the experience of other approaches. I would certainly like to see the Portuguese model examined objectively and compared to our current paradigm.

All in all, whilst supporting the aim of protecting the vulnerable from the unwanted impacts of drug use, I’m uncertain this approach is the best way to achieve that outcome.

One thing I am fairly sure about is that the current position that everything is lawful until it’s made unlawful is all things considered a healthy starting point. It is what our legal system has been based on for centuries and has much to recommend it. I for one would not rush to the legal approach of ancient Rome where all was illegal until it was made legal – something these proposals come perilously close to doing.