Thursday, 26 January 2012

Every man and his rights

I can't help but notice that the Conservatives don't seem to be able to keep their noses out of the human rights issue. One of their election pledges was to repeal the Human Rights Act 1999, Theresa May criticised the Act in her Party Conference speech last year, and just yesterday David Cameron made a speech to the European Court of Human Rights at Strasbourg, criticising the court.

There are many things to say on each issue. Repealing the Human Rights Act and replacing it with a more comprehensive Act, which does more than merely enact the European Convention of Human Rights in a limited fashion into British law, wouldn't be a bad thing. Had Theresa May criticised the Act in those terms, there wouldn't have been a problem. And had David Cameron merely criticised the bureaucracy of the European Court of Human Rights in allowing such a massive backlog of cases build up, I wouldn't have had a problem (given the delay in cases being heard I'd even go so far as to say the ECtHR itself is in violation of Article 6 of the ECHR - the right to a fair trial).

But that wasn't what was said in any of these major cases.

The Conservatives promised to introduce a 'Bill of Rights' to replace the HRA. The idea itself was nebulous, and information about the Bill itself is sketchy. Whether it would contain provision enacting the ECHR into British law isn't clear. Even assuming it would, it would be fair to say that it would be a far narrower document because of what has been said by the Conservatives in criticising the HRA. They feel it gets in the way. It's an inconvenience when it comes to dealing with foreign nationals (more specifically, deporting foreign nationals). According to Theresa May, one man wasn't deported because of the enactment of Article 8 of the ECHR (right to a private and family life), which meant that because he had a cat he couldn't be moved. That whole story is rubbish (in making the decision a tribunal won't consider a moggy as part of the private and family life), but it serves to illustrate perfectly the annoyance that the Conservatives have at the HRA.

I have a gripe - and a big one - with the HRA. It's not that it's too broad and allows convicted foreign nationals to remain in the country when their home nation is likely to kill them. It's that it doesn't go far enough. The courts can only declare an Act of Parliament incompatible with the ECHR, and it's then at the Secretary of State's discretion whether or not they act to make the relevant provision compatible. Should the Secretary of State decline to make an amendment, then the injustice ultimately continues. The courts don't have sufficient powers to rein in Parliament other than essentially issue a strong telling-off that no one will take a blind bit of notice of. It's about time that courts did have the power to force politicians to act and amend legislation rather than just express an opinion about policy.

This impotence is the big problem that has led to a backlog of cases at Strasbourg. ECtHR bureaucracy will have played a part in allowing the backlog to become so large, but the question has to be asked about why there are so many cases going through in the first place. In our case it's because the courts don't have sufficient powers to remedy a situation - although the ECtHR hardly has any more - and we have had several governments who thought they could pass legislation what was in breach of the ECHR (and were sadly right).

So now we have David Cameron criticising the European Court, despite the problem being at home. And my biggest problem isn't even the fact he's missed the major problem about the backlog of case: it's that in his speech he trivialised human rights as a whole in declaring that the ECtHR should only concentrate on the big cases and let home governments get on with their own policy.

Cameron has forgotten the underlying purpose behind the ECHR itself: to enshrine the rights of human beings so that abuses such as those seen in the Second World War could never happen again. And it's not just the basics - right to life, right to freedom from torture, right to freedom from slavery - that it's enshrined. Article 14 prohibits discrimination on any ground (I wonder if Theresa May has seen it - if she has she's probably going to ignore it). Article 12 is also an interesting one (read it with Article 14, and you'll see exactly what I mean). If it's enshrined in the ECHR then someone has a right to take it to a national and eventually European court to argue for their right under it. Every human right is a major issue, not something to be trivialised. It's not for a pig-headed politician to tell the ECtHR what it should and shouldn't listen to because he doesn't like certain things going before it, hiding his attack behind the veil of attacking bureaucracy.

The ECtHR does need to speed up getting through its caseload, that much is certain. But to suggest that it should concentrate only on certain cases and let national governments have their own way on certain issues undermines the very concept of a pan-European convention. Regardless of what the right-wing press think, the ECHR is one of the most important documents drafted in the history of Western civilisation, on a level above even the Magna Carta. It's about time that the Tories learned to respect what it does.

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