Cameron’s approach to rights is legally illiterate and will harm the vulnerable

by Ed Williams

“The Human Rights Act has made it harder to protect our security. And it’s done little to protect some of our liberties. It is hampering the fight against crime and terrorism. And it has helped to create a culture of rights without responsibilities.”

So speaks the current Leader of the Opposition.

On 26 May 2009 in his “Fixing Broken Politics” speech he laid further blame at the door of the HRA and more specifically the Judges that interpret it:

“since the advent of the Human Rights Act, judges are increasingly making our laws. The EU and the judges – neither of them accountable to British citizens – have taken too much power over issues that are contested aspects of public policy and which should therefore be settled in the realm of democratic politics.”

Cameron’s answer is to abolish the Human Rights Act and replace it with as yet some unspecified Bill of Rights, “that is home-grown and sensitive to Britain’s legal inheritance.”

Abolishing the HRA reveals not only a legal fallacy at the heart of Cameron’s thinking, it will restrict access to European Convention rights and is legally pointless as any Bill of Rights will inevitably have the same rights as currently protected in the HRA.

Cameron’s promise of a new bill of rights will lead to both legal confusion and uncertainty as well as considerable expense that will inevitably arise between the conflict between a “home grown law” and Convention, which the Conservatives have said they will remain a signatory to. Being a signatory to the ECHR means that under international law UK legislation, Cameron’s “home grown law”, cannot be incompatible with the Convention and absent any derogation, such as a specific threat to the nation, the Government has to make it compatible.

Not only will any Bill of Rights without the HRA, lead to an almighty legal mess of conflicting fundamental rights, but by remaining a signatory to the Convention the so called “European rights” of the convention will remain protected.

Another worrying side effect to abolishing the HRA is the return to the pre-2000 position of forcing parties who feel their convention rights have been breached to seek redress in the European Court of Human Rights in Strasborg. When there is a conflict between the State’s interpretation of “home grown law” and the Convention- which is inevitable- Cameron’s policy will lead to individuals being unable to enforce their Convention rights in the domestic courts. Instead, they will have to take a case through all the appellate levels in the UK before joining a seven year, 95,000 case queue to finally be able to argue the case in the European Court of Human Rights. Nothing could be a greater indictment on the reality of the Conservative solution “fixing our broken politics” than this restriction and lengthening of the justice process. How is this empowering “individuals” as Cameron promises?

There is another absurdity in the Conservative position and that is that all the fundamental freedoms protected in the HRA will inevitably find their way into their Bill of Rights. The HRA guarantees some of the following key rights:

Article 2 The right to life and the prohibition of arbitrary deprivation of life
Article 6 The right to a fair trial
Article 8 The right to respect for private and family life, home and correspondence
Article 10 Freedom of expression, including the right to receive and impart information and ideas without interference
Article 11 Freedom of assembly and association, including the right to form and join trade unions
Article 14 The prohibition of discrimination on any ground such as sex, race, colour, language, religion, opinion, national or social origin, association with a national minority, property, birth or other status.

It is difficult, if not impossible for any sane politician to argue that such rights, which are part of a legal framework that seeks to act as an essential safeguard against arbitrary state power, would not appear in any subsequent Bill of Rights. Human Rights are universal, they are not to be tailored to whatever a particular government in a particular country happens to decide is part of the “legal fabric” of that country. This dangerous legal relativism is prone to worst possible abuse by the State.

What Cameron’s proposal reveals is not only the Conservative’s very real ambivalence to fundamental rights (they are also threatening to repeal the Equality Act), but along with leaving the mainstream Centre Right grouping in the European parliament, it demonstrates once again Cameron’s worrying tendency to appeal to the prejudices of the tabloid press together with those more reactionary elements of his Conservative base for whom the word Europe is shorthand for a modern day jackboot. The answer lies in improving and strengthening the HRA, not abolishing it. A passionate case for fundamental Human rights must be made.

No defender of the HRA is going to say that in its 9 years in existence it has not been without its problems, but it has played a very real part in helping others succeed where they would not have done before.

The examples are numerous and varied and include pensioners being able to live in dignity, the development of a right to privacy, (ironically exploited by those very newspaper barons that lambast the Act), trade unions being able to expel BNP members, or having the right to collective bargaining recognized as part of the freedom to associate and even companies being able to evoke the HRA in commercial disputes. Only today expat UK pensioners are arguing their case in the European Court of Human Rights for their pensions as NI contributors to be increased to the same levels as other UK pensioners. Even the Countryside Alliance have benefited from the HRA.

The point is that the HRA is not about criminals, terrorists and asylum seekers. It is about safeguarding individual rights against interference by the state in many different guises as well as being a statement of a shared commitment to the universality of our human condition through the protection of fundamental rights.

Over 41% of those surveyed in a recent survey commissioned by the Equalities and Human Rights Commission agreed that that the “only people to benefit from human rights in the UK are criminals and terrorists”. Any review of the 327 cases last year will show that this is flat wrong. Yet the perception is there, filling a vacuum where the defenders of the Act ought to be. It is the same vacuum where Cameron peddles his party’s dislike of the Act.

Yes we need a Bill of Rights, but not the legal nonsense that is the Conservative version, but one that builds on the rights in the HRA and goes beyond them into the field of welfare, education and health provision. In the meantime we should strengthen the current HRA, for example by placing a duty on public bodies to promote human rights, or by looking again at how despite the Higher court’s issuing a declaration of incompatibility the Government suffers no sanction if it fails to make the legislative change.

The time is now for those who believe in the case for human rights in this country to challenge the hollow, ill thought out and politically expedient policy of David Cameron and his Conservative Party. Repealing the HRA exposes once again the absurdity of Cameron and Osborne’s claims to be in the “progressive” tradition of British politics.