I wasn't going to blog on this issue about the Human Rights Act, but now that Milligoon as offered us "differing views
" on the Human Rights Act, while only citing the views of some papers that he and I both agree peddle objectionable views rather than those where we might disagree, I think I do need to state the case for the Human Rights Act 1998.
I am wary as the next person of the dangers of giving too much political power to judges. Judges should judge (and in so doing they should be guided above all by the rule of law, absolutely not by the court of public opinion). Parliaments should legislate (but not as often as they seem to do in the UK). And executives should initiate and execute policy. Lacking a written constitution, in the UK we often find those functions becoming far too confused, with inadequate checks and balances. Moreover, we have the pathetic spectacle of a party which - when in opposition - vehemently defended civil liberties, now in government leading the opposition to the very act which it trumpeted as one of the most important innovations for the British Constitution in hundreds of years.
As usual, all sorts of hard cases are being used as the basis for making bad policy, and - if the government carries out the threat not only to repeal the Human Rights Act but also perhaps to pull the UK out of the European Human Rights Convention altogether - as the basis for making bad law. The Afghan hijacking issue is, as Marcel Berlins points out
in a trenchant defence of the Human Rights Act, a very difficult case. But it is a rule of law question, and a procedural question, and not really a human rights question at all. If the Home Office cannot be bothered to apply the rules which exist and which have been agreed by Parliament, just because someone thinks the case for deporting Afghan hijackers is an open and shut case, then this is a very slippery slope indeed. The rules are there for very good reason, to protect all of us against oppressive executive action, and those who are complaining about the absence of executive action now will be the quickest to complain if such action were directed towards them in the future in circumstances where their procedural rights were infringed. Moreover, as Berlins and numerous other commentators have pointed out, the tragic case of Anthony Rice, the rapist who killed a woman nine months after being released on licence is nothing to do with the application of the Human Rights Act in the courts and probably nothing about human rights at all. Here we are back to the essential issue which lies at the heart of the debate about foreign prisoners deportation scandal. If the prisons and other services are so poor at promoting rehabilitation, and recidivism is so high, then that is something we should look at rather than knee jerk blame for the HRA.
So we are offered more public services reform, to address a criminal justice system apparently in chaos. Make me laugh, why don't you? When will these self-defined reformers actually start to realise that having public services in constant reform, nay revolution, is actually a receipe for failure in relation to routine tasks such as managing probation or deportation processes, because public servants are constantly demoralised by being told they are failures. And constantly confused by changing systems. Funnily enough, they then live up to that "ideal" when they fail to apply routine administrative systems properly.
One last word in the HRA and its origins. It enshrines the European Convention on Human Rights and Fundamental Freedoms, drafted at the end of the 1940s under the aegis of the Council of Europe, in the shadow of a Europe which had been a human-rights-free space for quite a number of years. It has undoubtedly assisted the process of transition of numerous countries from that date to this one in relation to the promotion of values such as the rule of law, protection of the individual, and indeed democracy and good governance. However, it is often forgotten that the ECHR is an exceptionally "English law" instrument, in which the positive influence of English lawyers on the drafting of the provisions particularly on procedural rights was paramount. The ECHR actually reflects much more of an English common law philosophy of civil liberties protecting the individual from oppressive state power than it does some sort of American notion of human rights as trumps in intersocial relations. That philosophy generally also pervades the work of the Court of Human Rights in interpreting the Convention. But the Convention is a living instrument, and it is the only genuinely "European" legal instrument that we have. Those who wish to see the UK opt out of that European legal instrument guaranteeing basic standards of civilised society are not opting for some sort of transatlantic vision in which the UK is closer to the US. Hardly. I don't think those advocating that view would be happy with the UK having the type politicised Supreme Court we see in the US. So what exactly are they looking for? For the UK to divest itself of its last remnants of civilisation in the name of "protecting the public"? Well, go on then, tell me.Update 1.30pm In his comment, Milligoon says we agree on this. I don't know. The interaction between politicians and judiciary all seems one way to me. The politicians berating the judges for not doing "tabloid will", and preferring to apply laws which Parliament has passed. Anyway, what I want to know is does he agree with this leader from today's Guardian, which I have just digested with my sandwich:
"The government is not running this attack on the judges and the Human Rights Act because our judges have lost their reason, or because the 1998 act is a charter for anarchy and lawlessness. It is doing so because Labour strategists are neuralgic about defending the party's positioning on law and order against the Conservatives and because ministers are running scared of a confused and often xenophobic press campaign against a piece of legislation of which the government ought to be proud. Every time that a foreigner commits an offence, some newspaper finds a way of blaming the Human Rights Act. Every time an ex-prisoner reoffends, some politician finds a way of twisting the facts to hold the Human Rights Act responsible. Every time that a court rules against the police, or the immigration authorities or the prison authorities - and none of these things happens very often - the Human Rights Act becomes the convenient whipping boy. With Labour's ratings low, and with a continuing haemorrhage of electoral support, Downing Street clearly believes that it is easier to join a lynch mob than to stand up to it."
If you can't (or indeed don't want to) beat the intolerant xenophobic tabloid press, then why not join them. Clearly a vote winner.
Well at a certain point, I suppose emigration remains an option, but boy am I glad I've at least migrated north of Hadrian's Wall.