by Sam Fowles
Forced to abandon NHS bashing for the sake of the election, David Cameron needed to feed the right some red meat. He chose the European Convention on Human Rights, promising to repeal the Human Rights Act, which allows English judges to incorporate the dicta of the Strasbourg court into their rulings, and allow Parliament to ignore the European Court of Human Rights. This is more than simply wrong; it shows a fundamental failure to understand of the role human rights play in international law and politics.
The international law of human rights is based on the premise that there is something fundamentally valuable about each individual human. In this light Cameron’s idea of a “British Bill of Rights” seems absurd. People are not inherently valuable because they are British or French or Afghan. We are valuable because we are human. For this reason that the ECHR applies to British troops fighting abroad. To suggest that people should lose value in our eyes because they are non-European is an attitude redolent of the 13th Century not the 21st.
The ECHR is itself based on the Universal Declaration of Human Rights. It doesn’t invent “European Rights”. It allows citizens of European states direct access to universal rights. It’s worth noting that the UK would remain bound by a plethora of international human rights conventions even if it were to secede from the ECHR (as the Conservatives threaten). The government’s legal obligations wouldn’t fundamentally change; they would just get more complex.
In practice human rights law protects the vulnerable from the powerful. This is why a bill of rights decided purely by the parliamentary majority is so dangerous. Human rights act as a check on the majority. Courts should make decisions (such as giving prisoners the vote) with which most of us disagree. If they didn’t they wouldn’t be a check on the majority.
This is important because, in a democracy, the majority should be able to change. If the power of a majority is not checked then there is nothing to stop that majority taking steps to make itself permanent. Cameron is asking us to trust to powerful to set limits to their own power. For a man who supposedly venerates the Magna Carter he sounds suspiciously like Prince John.
Cameron has also failed to understand that human rights are based in law, not politics. Chris Grayling is right to say that Churchill would not recognise the ECHR as it is now construed. But, as a man who understood the law, Churchill would not have expected to. Law evolves as society evolves. To suggest that the framers of the ECHR had some sort of divine insight allowing them to perfectly capture the value of humanity is absurd. They set down principles to be developed by future generations.
Cameron would, no doubt, respond by arguing that they should be developed by English, not foreign, judges. But this misses the point. Human rights are not English. English judges have no better insight than judges from Azerbaijan. The best we can do ensure the judiciary is cosmopolitan. Although the evolution of rights can never be perfect, it will at least then be shaped by as wide a range of perspectives as possible.
In any case, if Cameron were to put rights solely into the hands of English judges, they would still make decisions the government does not like. The point of independent judges is that they can disagree with the government of the day. Unless Cameron intends to make judges responsible to Parliament he has to accept that sometimes other people get to disagree with him.
The most ridiculous argument the Conservatives make is that the ECHR undermines British sovereignty. The idea of unlimited state sovereignty is an 18th century fiction and Cameron knows this. He is only too happy to have his policy dictated by foreign powers when he is stripping rights from workers in order to match the labour standards set by Korea or China.
When they helped establish the ECHR, Churchill and his (Conservative) Attorney General, Sir David Maxwell-Fyfe, struck a more enlightened form of the bargain every state strikes when it eschews isolationism. They agreed to be bound by international norms on the condition that Britain had a hand in creating them. Instead of a treaty, requiring endless international summits to adapt, they established a court to ensure constant evolution.
It should be a source of pride, not rage, that we, as a nation, hold ourselves to the highest standards when it comes to respecting the inherent value of the human. The idea of human rights embodies the principal that people are more important than ideologies. If he hopes history to remember him with any fondness, David Cameron would do well to remember that maxim.
Sam Fowles is a researcher in International Law and Politics at Queen Mary, University of London and the University if Sydney. He blogs for the Huffington Post and tweets at @SamFowles
Tags: British Bill of Rights, Chris Grayling, David Cameron, ECHR, human rights, Sam Fowles, Universal Declaration of Human Rights
Its an important point that Tories don’t understand HR , but then not everyone does, not even Professors of Law and International Politics. Laws are framed by the context of the times and the people. The fact that there can be fundamental ‘Rights’ is a fallacy. You cannot assign Rights to individuals that are doing their untmost to undermine and throw over a State which has democratic legitimacy. And, with ‘Rights’ must come with ‘Responsibilities’ to your fellow man/woman. So we should change the name to Human Rights and Responsibilities Act, and clearly list the responsibilities that one citizen has for another. And we have to be prepared to change and adapt what is right and what is wrong, when the circumstances change.
At Nuremburg the evil Nazi Leadership were rightly executed for War Crimes.
Is largely irrelevant as the tories will replace it with writtten Bill of Rights and written Constitution. It will guarentee your rights as an individual, enshrined in law. Something thyat has never existed.
Apart from which, it was being routinely abused – unless of course you think it’s perfectly acceptable that murderers, rapists, child molesters, thieves, drug dealers, habitual drink drivers etc from overseas that have settled here shouldn”t be repatriated to their home country on release – which we currently face major battles over because of ‘the right to family life’.
So, will Labour offer any hard guarentees that they will ignore parts of the ECHR (as do the Germans and French routinely)? Or are they going to remain their current weak aneamic selves and pander to the faux-socialist tossers that read The Guardian.
It’s not that the Tory scum don’t understand Human Rights, they simply don’t care.
All true but you fail to mention Labours record. 3 Months in jail without charge, remember that ?
@ Tafia
Spoken like a true-blue Tory. You’re on the wrong forum mate.
PAUL BARKER, IT WASN’T JAIL IT WAS HOSUE ARREST THAT WAS PROPOSED AND IT DIDN’T BECOME LEGISLATION
this is an article that i agree with, but Tafia, has pointed out the the Tories changing the HR with a bill of rights, wouldn’t be that different
@Tafia
The HRA 1998 did exactly as you suggest the Tory Bill of Rights would do – ensrine basic rights into British law.
So we now agree there’s no need to repeal it right?
As for the assertion the HRA is routinely abused, this doesn’t stack up with the evidemce.
As for the assertion the HRA is routinely abused, this doesn’t stack up with the evidemce. That is not true and you know it isn’t. The very fact that people released from prison and slapped with repatriation Orders routinely appeal under ECHR and win on the grounds of ‘family life’ (including in one instance two years ago because of a pet cat) destroys your argument on the spot. If you are an immigrant and you commit a crime involving violence, sexual offences, theft and or drugs/drink abuse and receive a custodial sentence – even suspended, then you should be automatically deported on the day of your release, no Appeals.
The HRA 1998 did exactly as you suggest the Tory Bill of Rights would do – enshrine basic rights into British law. It is subordinate to ECHR. The tories proposed Bill of Rights and written Constitution would never be subordinate to Brussels – it would always be purely ‘British’.
Spoken like a true-blue Tory. You’re on the wrong forum mate. I vote Plaid Cymru. I was a member of Labour for nearly 25 years and was very active at street level and in the workplace including being an elected workplace union rep for over a decade. Then I saw them for exactly what they are – a middle-class London dominated faux-workers party only interested in the public sector, statism and professional benefit claimants. They have little to offer ordinary working people – other than comedy. They are even embarrassed by trades unionism these days. They serve little purpose and should be humanely destroyed by a decent vet.
If one person has used the same ,techniicalit as another to abuse the HRA to get away with the punishment they. Deserve,it’s a routine that’s repeatedly abused
Landless peasant, Tafias not a Tory, and just cos he doesn’t vote labour, doesn’t mean he isn’t a potential labour leader,considering Jack straw as justice secretary, my name sake and Blunkett, all denounced the HR ,when the latter were Home Secretaries, without suggesting a bill of rights to replace it, I’d actually say that the current lot, were more libaterian, than 2 of the last labour Home Secretaries
You are aware that several tories support theHRA
The ECHR is being used as a political gateway and allowing the judiciary into politics. The socialist in EU and Uk love this of course, but constitionally its not acceptable.
http://www.spiked-online.com/newsite/article/two-cheers-for-the-tory-war-on-human-rights/15967
http://ukhumanrightsblog.com/2014/10/05/the-fragility-of-human-rights/
Sorry should have read “constitutionally”
“The very fact that people released from prison and slapped with repatriation Orders routinely appeal under ECHR and win on the grounds of ‘family life’ (including in one instance two years ago because of a pet cat) destroys your argument on the spot.”
That’s not abuse. That would be an example of the law working.
No, the State cannot just deport people who lived almost their entire lives here just because they’ve gone to jail.
Try again.
“The tories proposed Bill of Rights and written Constitution would never be subordinate to Brussels – it would always be purely ‘British’.”
That’s not what the Tories are proposing. And the ECHR sits in Strasbourg.
In order for the UK NOT to be subject to ECHR rulings would require full withdrawal from the convention. As that would make the UK a mad pariah state, not even those slaves to the Tabloids the Tories are suggesting that.
Where you are correct is in the brazen attempt of Tories to usurp fundamental rights, which are not theirs to withold from anyone no matter what they believe and who they hate (a growing list in rightwing circles), by imposing primacy of parliament. But that is utterly utterly illiterate.
Human Rights stand on their own accord outside the reach of the State – they are a check on what the State can do to individuals. As such I say this to you Tafia – keep your mitts off my Rights.
“That’s not abuse. That would be an example of the law working.”
Strictly speaking it was nothing to do with a cat, but none the less it was an abuse of Article 8 by the judge. He was one of those who only reads half the Article and ignores the other half.
“No, the State cannot just deport people who lived almost their entire lives here just because they’ve gone to jail.”
Er…..wrong again. It depends on what basis the criminal was in the UK and what was the crime.
“In order for the UK NOT to be subject to ECHR rulings would require full withdrawal from the convention”
Mmmm…wrong again. The ECHR and the ECJ are regularly mixed up. We are only required to take into consideration ECHR judgements. But the ECJ does go further than that.
Under Conservative proposals the ECHR would remain in place as an advisory to the new BBoR.
Suggest some research may be in order BenM
No, the State cannot just deport people who lived almost their entire lives here just because they’ve gone to jail. If thats’s what the people want then yes they can. They can make or change any law they want.
That’s not what the Tories are proposing It is exactly what the tories are proposing – no subordination.
And the ECHR sits in Strasbourg. That is irrelevant. We are subordinate to ECHR because Brussels says so.
In order for the UK NOT to be subject to ECHR rulings would require full withdrawal from the convention No it would not. likewise there is no need for a referendum to leave the EU p Parliament has the powers.
BenM, ex labour is right, if someone from abroad lived here all their live, and found guilty,then released of terrorism,then why should they stay here
Yes after 12 years of Labour by 2010 the public were fed up with us and the expenses scandal didn’t help but that doesn’t explain why we lost 4 times on the trot 79-92 ,regarding Blair winning in 1997 ,because the public were fed up with us, if we couldn’t win in 1992 with the poll tax and the state of the NHS and the recession we weren’t necessarily going to win in 1997,after all the Republicans lost 5 elections on the trot 1932-1948, so Labour could have lost a fifth election in 1997, and as for Blair not being more left wing OK, but it was the ground he fought in 1997,that saw him re elected after a full term, with another landslide, something .that had never happened before
Our Parliament agreed to the 1950 European Convention on Human Rights as a binding international agreement; in addition, our Parliament agreed to the mandatory and compulsory jurisdiction of the European Court of Human Rights.
The European Court of Human Rights has ruled that the UK is in breach of the Human Rights Convention by banning the right to vote for all prisoners. States cannot simply ignore a Court ruling that they are in breach of the Convention, and the current situation cannot be left as it is. The Court’s rulings are binding on governments.
My view? One of the most important contributions citizens can make to society is to take part in our democracy and vote. It doesn’t make any sense to me that removing the obligation of a civic duty (i.e. voting) should be considered a “punishment”.
So, I don’t believe that a complete, blanket ban on all prisoners from voting is useful or beneficial to society. If we believe reform is possible, then voting should not only be a right, but actively encouraged among those prisoners who will one day return to our communities.
See my full commentary about this: ‘Should prisoners be allowed to vote?’
http://www.prisonervotes.mythexploder.com