A recent Private Eye cartoon showed a tombstone which read, ‘Always read the small print…I didn’t’. There is much wisdom there.
It is a real fear that the European Convention on Human Rights (‘the ECHR’) and the European Court of Human Rights are becoming (in the public mind) so hopelessly entangled with the European Union that, unable to unravel the two, we throw the whole thing out together. To anyone who has ‘read the small print’ such action would be inconceivable and only possible because those in government found such confusion politically expedient.
Let us start from the basics. The European Convention on Human Rights and the Court of Human Rights are nothing to do with the European Union. The ECHR was drafted in 1950 and ratified in 1953. The Treaty of Rome, which established what was to become the European Union, was not signed until 1957 and has an entirely different pedigree and signatories.
The main draftsman of the ECHR was Sir David Maxwell-Fyfe KC MP, a barrister and Conservative MP, who went on to serve as Home Secretary and (under the title Viscount Kilmuir) as Lord Chancellor. He had been a leading prosecutor at the Nuremberg trials, noted for his devastating cross-examination of Herman Goering. The Convention is therefore steeped in common law traditions of personal liberty. The treaty was ratified under the premiership of Winston Churchill.
There are now 47 states who are signatories to the ECHR, many of whom, such as Russia, Turkey, Azerbaijan and Armenia, are not even members of the European Union. Iceland left the European Union but remains part of the ECHR. There is no link at all between the two bodies.
What about the Human Rights Act 1998? What was that about? The citizens of the UK have had all of the rights set out in the ECHR since 1953. However, because it had not been incorporated into domestic law, anyone who felt their rights had been interfered with had to go to the European Court of Human Rights in Strasbourg to make their claim. The court is specific to the ECHR and the presence in the same city of European Union institutions is purely coincidental. The 1998 Act simply allowed human rights issues to be heard in the UK courts, without, as it were, washing our dirty linen in public. The individual had no more or less rights after the Act was passed. They were simply easier to access.
What does the ECHR actually say? This is where we get into the small print. Many will be surprised to learn that it imposes no restrictions on them as individuals. Getting rid of the Human Rights Act would not remove any kind of ‘foreign yoke’ from around their necks, because the Convention only restricts the way in which the state and its organs can behave towards the individual. The sort of things that it prohibits are these:
- Sending a paramilitary death squad to your house to shoot you (Article 2 – Right to Life)
- The police attaching electrodes to your genitals to make you confess to crimes (Article 3 – Prohibition of torture)
- Selling illegal child immigrants to the highest bidder (Article 4 – Prohibition of slavery and forced labour)
- Locking you up without trial or charge for years (Article 5 – Right to liberty and security)
- Allowing judges to be bribed (Article 6 – Right to a fair trial)
- Making something a crime retrospectively, so that you go to jail for something which was legal when you did it (Article 7 – No punishment without law)
- Planting listening devices in your bedroom to check if you should be getting a single person’s allowance on your council tax (Article 8 – Right to respect for private and family life)
- Making it compulsory that everyone converts to Islam and that all women wear a hijab in public (Article 9 – Freedom of thought, conscience and religion)
- Closing newspapers and television stations down if they do not support the government (Article 10 – Freedom of expression)
- Sending in troops or police to break up a trade union meeting (Article 11 – Freedom of assembly and association)
So, having read ‘the small print’, what could possibly induce anyone to support the repeal of the Human Rights Act? In simple, selfish terms, ‘What’s in it for me?’ The answer, as the late Paul Daniels might have put it, is ‘Not a lot!’. Perhaps the better question would be to ask those in power, ‘What’s in it for you?’
They might tell you that the Act gets abused by all kinds of undeserving people. That a criminal could not be deported ‘because he had a cat’. That is economical, to the point of being positively parsimonious, with the truth. There was no cat who saved his wicked owner from deportation. The European Court of Human Rights, in fact, very seldom interferes in UK affairs. Only 1.42 per cent of its cases relate to the UK and in 2013, out of 1652 cases brought against the UK in Strasbourg, 1633 were held inadmissible or otherwise struck out.
It is suggested that there should instead be a ‘British Bill of Rights’ but there is scant information about what it would contain. Would the rights be more extensive than those given by the Convention? Somehow, I doubt it. Bear in mind too, that whatever one Parliament does today, another Parliament can undo tomorrow. It would be capable of repeal and amendments by future governments of all political hues. Furthermore, since there is no suggestion that the UK should withdraw from the Convention, its citizens could still go to the court in Strasbourg if their rights were interfered with. We would have two parallel and competing systems and be a judicial laughing stock.
The choice of the title ‘Bill of Rights’ is telling. It borrows the clothes of the Bill of Rights Act of 1689 and of the United States Bill of Rights which it helped to inspire. How well those clothes will fit, remains to be seen. The question – why does it need to borrow clothes? – unanswered.
There is a profound political paradox in these moves to reform. The Convention was drafted by a Conservative politician and ratified under the doyen of Conservative prime ministers. It is concerned with placing limits on the powers of the state to interfere with the lives and persons of the individual. That same free-market, libertarian philosophy is to be found in writers such as Robert Nozick, whose notions of the ‘minimal state’ underpinned much of Margaret Thatcher’s approach. How can it be that their successors now seek to unfetter the state and, in my dystopian vision of the future, place those fetters on its citizens?