Monday, May 15, 2006

Really different views about the Human Rights Act

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.

8 Comments:

Blogger MilliGoon said...

Actually my point, and one which I did not make very clearly, is not that far away from what you are saying. I was not advocating more reform, but, in a way, less; I am really saying that elected politicians are too close to the judiciary at present and thus contantly tinkering, which is why they are now saying that the HRA should be reformed. You will get no argument from me that "if it ain't broke don't fix it"; and the HRA ain't broke! What is broke is the interaction between a bunch of morally bankrupt politicians and the judiciary, and really I suppopse that this is a completely different subject which seems to have become entwined in this whole argument thanks to Falconer and the scaremongering louts of the tabloid press; and as I have pointed out before we do seem to be being led down the path of government by tabloid press.

Monday, May 15, 2006  
Blogger Cliff said...

I do agree with you on alot BW but I suppose I come more from the tabloid lout end of the debate in that it seems to me that the more laws that get passed, the more lawless we become. The rule of law depends on a respect for the law, and an equality of treatment under the law, that is becoming more and more eroded by not just this act but also the behaviour of politicians and judges and a sense that alas I am not the only one to have that the law and justice are becoming increasing unrelated to each other and all the legal areguments in the world won't stop that.

Monday, May 15, 2006  
Blogger BondWoman said...

Cliff, the people failing to show respect for the law here are the politicians, not the judges. The judges are applying the law, as passed by Parliament. I believe the separation of powers is what sustains that important principle. There'll be no meeting halfway on this one.

Monday, May 15, 2006  
Blogger MilliGoon said...

Oh dear, what have I started? All I really said was that politicians should pass legislation then bugger off, stop tinkering and leave it to the judiciary to implement the said law, but that we don't want legislation to correct perceived legislative loopholes as are promoted in kinee jerk reaction to the scaremongering of the tabloid press. I actually think that respect for, and treatment under, the law is becoming eroded; but not by legislation like the HRA, it is becoming eroded by the swathes of unnecessary legislation being implemented by this bunch of morally bankrupt loonies. All of this has the effect of leaving the judiciary in complete confusion.

Monday, May 15, 2006  
Blogger BondWoman said...

Disagree with you again, MG. There's no confusion in the judiciary. They know what they are supposed to do. What is happening is the seeds of an authoritarian state in which the rule of law is fundamentally compromised are being sown.

Monday, May 15, 2006  
Anonymous Patrick said...

A lot of the comment that I have heard today (albeit on Radio 4 and therefore limited in scope) was from people who were arguing that the HRA 1998 was somehow different from the common law of the land. The difference is that the common law of the land partially consists of the interpretation of statutes by judges over generations in the context of real cases involving real situations which were never envisaged by the legislators. You only have to think about the whole range of issues involved in human fertility to see that. Because this is a realtively new law and places the assessment of compatibility with the ECHR (which was always available to the British subject in any case) now in the hands of the British courts, and there are other pieces of legislation which clarify the boundaries of state action to prevent abuses of human rights (PACE, RIPA/RIP(S)A, CPIA etc.) there will inevitably be cases to establish the interpretation of these laws in practice. Now this is the outworking of justice in a free and democratic society; our constitution, such as it is, places the task of the interpretation of laws firmly in the hands of the courts; for politicians to choose hard cases as an excuse to make bad laws (of which we have no lack) and for the media not to challenge them, bodes ill for our democracy.
What concerned me was the suggestion from the government that somehow punishments should be inflicted on people who were "not law-abiding", when what was clearly implied was that the executive wish to extend their instruments of control/oppression/call-it-what-you-will against people who have not been convicted of a criminal offence. We have observed that we are in a time when politicians are making capital of xenophobic instincts in the illiberal media and appear to be doing no less than seeking new excuses to impose further restrictions upon the liberties of the British subject.
I, too, am pleased to be living north of the border where the Scottish courts and executive are far more reticent to apply oppressive measures to Scots than their English cousins seem to be. However, I am looking carefully at my entitlement to Irish citizenship should the need arise to pursue a free life somewhere in these British Isles in the future.

Monday, May 15, 2006  
Blogger BondWoman said...

Now, Irish citizenship. I hadn't thought of that. BB would be pleased, though, as he notes that Ireland does not tax artists!

Monday, May 15, 2006  
Blogger MilliGoon said...

The Guardian leader is only emphasising what I am, admitedly clumsily, trying to say, and that is that we are well down the path of government by tabloid press and that the judiciary are being stymied at every turn by bloody morally bankrupt elected politicians!

Very interesting comment Patrick, and the idea of Ireland really appeals to me as BW says, and it has nothing to do with the tax breaks for artists, that is simply a bonus.

Monday, May 15, 2006  

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