By Jon Danzig
The British government has pledged to scrap the Human Rights Act; introduce a new UK Bill of Rights and to curtail the role of the European Court of Human Rights in the UK. The details of the proposed reform are still unclear. However, it appears that the Conservative Party is about to abandon the peace-time legacy of its greatest leader, Winston Churchill.
It was Winston Churchill who in 1948 advocated a European 'Charter of Human Rights' in direct response to the abject horrors of the Nazi regime and the Second World War. British lawyers primarily drafted what was later to become the European Convention. The UK was the first country to sign up to the Convention, and leaving it would end over 60 years of being legally bound by this first international treaty on Human Rights.
Including Britain, there are 47 countries that have agreed to the Convention, which provides civil and political rights for all citizens. Soon the European Union itself is destined to become the 48th signatory to the Convention.
Under the Convention, individuals, or groups of people, or one or more countries, can petition the international 'European Court of Human Rights' in Strasbourg, France, to give judgments or advisory opinions on alleged breaches of civic and political rights by nation states. From 2000, the Labour government brought into law the Human Rights Act. This allows alleged breaches of the Convention to be heard in UK courts, but still retaining the right to petition the higher international court in Strasbourg.
Although the European Convention on Human Rights is completely separate to the European Union, signing up to the Convention and the jurisdiction of the European Court of Human Rights is one of the EU membership requirements. Article 6(3) of the Treaty on European Union states:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
In answer to a question in the European Parliament, the European Commission stated:
"The rights secured by the Convention are among the rights guaranteed by the Charter of Fundamental Rights of the European Union. In the negotiations for the accession of new Union members, respect for the Convention and the case‑law of the European Court of Human Rights is treated as part of the Union acquis."
In addition, scrapping the Human Rights Act could put at risk the Good Friday Peace Agreement in Northern Ireland, and the devolved legislatures of Scotland, Wales and Northern Ireland. That's because the Human Rights Act formed an integral part of the peace agreement in Northern Ireland and the devolution agreements of Scotland, Wales and Northern Ireland.
Constitutional law expert, Colm O’Cinneide, commented:
“Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks opening up some serious constitutional fractures."
These are issues that will be considered and challenged by lawyers, lawmakers and human rights groups in the weeks and months to come.
According to a review of the proposed policy by Full Fact - an independent fact-checking organisation - the aim of the new government is not to curtail the rights of British citizens (which will remain largely the same), but to restrict who is protected by them and which court has the final say on whether they have been breached.
As made clear in the Conservatives manifesto, the new Bill of Rights would, “break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”.
In other words, if the proposed reforms are passed by Parliament, no longer would the UK be signed up to an international law on human rights with an international court in ultimate judgement. Instead, alleged breaches of human rights by the UK government would be subject only to a national law and judged only by a national court.
The cat's out...
It was Theresa May who, back in 2011, erroneously claimed that an 'illegal immigrant' had won the right under the Human Rights Act to stay in the UK because he had a pet cat. At the time, fellow Tory, Ken Clarke, then UK Justice Secretary, felt the need to speak out against the claim, which he called 'laughable and childlike'. An official from the Royal Courts of Justice confirmed that a cat had nothing to do with the case. Even though the story wasn't true, it seemed to suit the agenda of those intent on belittling the Human Rights Act.
The point of Human Rights is that they should give equal rights to all humans; to you and to me; even to criminals and foreigners, and even to those humans we do not like.
Once we take basic rights away from one human, we start to erode the basic protections for all humans. That’s why Human Rights need to be international and universal, so that all humans can be protected, even from their own government.
Who’s going to protect us from our government if the international European Convention on Human Rights is replaced with a watered down national Bill of Rights, with no right of petition to the international court?
So why are some (but not all) Conservatives so against the European Convention on Human Rights?
They claim it's because the Human Rights Act, and in particular Article 8 - giving citizens the 'right' to respect for a private and family life - prevents the UK government from deporting foreign criminals. But is that strictly or absolutely true?
And also, aren't foreigners and criminals also human, and so don't they also have rights?
Article 8 might appear to provide a ‘right’ for foreign criminals to stay in the UK, but in realty this ’right’ is only upheld in ‘exceptional' cases.
For example, in 2010, 5,235 foreign national criminals were deported from the UK, but according to the Court Service, only 102 won appeals to stay here because of Article 8. That’s just 2% of deportations. The vast majority of appeals by foreign criminals to avoid deportation fails.
Human rights need to be properly understood
The Article 8 ‘right to private life’ can be overridden in the interests of national security; public safety; the economic well-being of the country; the prevention of disorder or crime; the protection of health or morals, and the protection and freedoms of others. In other words, Article 8 does not guarantee a right of a foreign criminal to stay in this country.
It should also be understood that the Human Rights Act doesn't prevent criminals from being correctly prosecuted, or imprisoned if they are found to be guilty. So, either our judiciary is not properly interpreting the Human Rights Act, or else these cases are not being properly, or fully, reported in the media, or by some politicians.
Those who understand why it was essential to establish Human Rights conventions after the Second World War will surely not want to see them diluted or undermined. We need to ensure that Human Rights are properly understood, and legitimately interpreted and upheld.
If the UK government breached your Human Rights, wouldn't it be safer to have the right to ultimately petition an international court – as we can now – rather than only to a UK national court, which is what the UK government is now proposing?
The case of Abu Qatada
The reason most quoted by Theresa May for wanting to scrap the UK's Human Rights Act is the case of radical Islamic cleric, Abu Qatada.
For many years the UK government repeatedly tried, and failed, to deport him back to his home country of Jordan, where he was wanted on alleged charges of terrorism. Qatada kept appealing against deportation under the Human Rights Act, and he kept winning, costing the UK government almost £2 million in legal fees and huge frustration.
The fury shared with the nation about the government's inability to 'get rid of him' put the issue of 'Human Rights' into a bad light. It wasn't the government's fault that they couldn't dispatch Qatada from the country, argued Theresa May, no; it was all the fault of Human Rights. If only we didn't have those dreadful Human Rights, we could have sent Qatada - and loads of other disliked people - packing from the country in an instant.
Well the story of Abu Qatada is probably one of the most poorly reported in some of our media and by some of our politicians.
At the outset, let me make perfectly clear that I am not a fan or supporter of Abu Qatada. Not at all. But the true reasons it took so long to deport him do need to be better understood.
Under the Human Rights Act, every one, every human, has the right to a fair trial, without the use of discriminating evidence that has been obtained through torture.
Would you expect anything less for yourself? If someone under torture made statements that you had committed a heinous crime, would you consider that evidence against you to be safe or fair? Would you be willing to be extradited to another country, or even deported back to your home country, based on such accusations against you that had been obtained under torture?
Article 3 of the Human Rights Act contains an absolute prohibition of torture. Article 6 of the Human Rights Act guarantees the right to a fair trial. Aren't these basic rights that all of us should have? If these rights can be taken away from one human, why wouldn't you worry that they could also be taken away from you? The only way for all of us to feel fully protected under Human Rights laws is to know that they equally apply to all humans, without any exceptions.
Under Human Rights law, the courts could not allow the deportation of Abu Qatada to Jordan whilst there was any possibility that the evidence against him was obtained through torture, and that he himself might be subject to torture. Eventually after many months of complicated negotiations, the UK government reached a binding treaty agreement with Jordan, that any evidence derived from torture would be disallowed. And then, guess what? Abu Qatada flew back to Jordan voluntarily, without any need to deport him.
So the question surely to ask is: why did the UK government keep trying to deport Abu Qatada if they knew that such a deportation could not be allowed when evidence against him might have been obtained through torture? And why didn't the UK government try to achieve a treaty agreement with Jordan many years earlier, allowing Abu Qatada to be deported and stand trial considerably sooner? It could have saved the British taxpayer a fortune.
● 'The next Conservative Manifesto will promise to scrap the Human Rights Act' - Theresa May, UK Home Secretary, Conservative Party Conference, Manchester, 1 October 2013. Click arrow to watch clip.
Following the speech by Ms May, The Telegraph reported that fellow government cabinet Minister Ken Clarke, '.. is understood to believe that the failure to deport foreign criminals and terror suspects such as Qatada more quickly has been due to Home Office incompetence, rather than any flaw in human rights laws.' Ken Clarke is a leading Conservative (but not the only one) who is 'adamant' that Britain should not scrap the Human Rights Act
Under suspicion by the State
Two years ago The Telegraph reported the case of a '33 year-old terror suspect', known only as 'AF', who was taking his case to the European Court in Strasbourg for alleged breaches of his Human Rights by the UK government.
AF, a resident of Manchester with his father, was suspected by MI5, the UK's intelligence service, to be linked to a Libyan terrorist group. Subsequently he was put on a curfew 'control order' for many years and his movements restricted. 'AF' had never been on trial and he and his lawyer had not been allowed to see any evidence against him, as the UK government claimed it was too 'sensitive'.
'AF' denied the allegations against him and claimed that his association with a 'family friend' was completely innocent. The Telegraph reported that he was appealing to the European Court of Human Rights claiming that the control order restricted his right to liberty under article 5. He also claimed that the secret decisions against him restricted his right to a fair hearing under article 6.
However, The Telegraph reported that his case adds 'yet more weight' for the UK to leave the European Convention on Human Rights.
Conservative MP, Priti Patel, was quoted as saying, 'The sooner we start to withdraw from the European Convention on Human Rights and challenge the judges in Strasbourg the better..' Readers to the Telegraph comments section agreed, with '1grizzly' commenting, 'Just chuck him out and to hell with Strasbourg' and 'Cargill55' stating, 'It's about time Britain ended its ECHR membership and repealed the HRA'.
I commented, 'Isn't anyone worried that the state can accuse and punish someone simply on the basis of "a suspicion" and without letting the accused or his lawyers know the evidence behind that suspicion?'
Of course, it’s essential that we are protected from those who put us at risk of terrorism or criminality, and for those convicted to be dealt with accordingly. But our parents, grandparents and great grandparents fought hard for us to be protected from unsubstantiated accusations by the State, and for the right to a ‘fair and full trial’ where allegations can be properly examined and tested.
We were the first country to sign up to the European Convention on Human Rights when it came into force over 60 years ago. Now the new British government seems determined to abolish the Human Rights Act, and our commitment to the Convention will be discarded, along with our right to take cases to the European Court of Human Rights.
Are we sure? Why is the Convention such a problem for us, and not the other 46 countries who have also signed up to it?
Put it this way: would you be happy to be accused of a serious crime, without being told the basis or evidence behind that accusation? Would you be happy to be punished for a crime for which you hadn't been tried or convicted? Can you truly say you trust all past and future British governments unconditionally, and that you’re happy to abandon the right to have our governments alleged breaches of civil rights ultimately challenged and tested in an international court?
The domino effect of Britain walking away from the world's first international legislation to protect citizens from state abuse could be devastating. If we are going to say we won't be subject to the rulings of the European Court of Human Rights, then what message does this send to other countries with far worse human rights records than our government?
What if Russia, a country that has a terrible human rights record, now decides to follow in our footsteps; withdraw from the European Convention, say it will not recognise the rulings of the European Court, and say human rights abuses by the Russian government can only be heard in a Russian court?
Our political masters should think very carefully before throwing away precious rights that could result in real human suffering across the world. It's essential to speak up against any erosion of human rights that people died to win for us.
Human rights for British citizens
The Human Rights Act has been essential to help British citizens. For example:
- The Human Rights Act has brought to account UK police for failing to investigate human trafficking and rape cases.
- Thanks to the Human Rights Act, UK law was changed to prevent rape victims from being cross-examined by their attacker.
- It’s because of the Human Rights Act that the right was established in the UK for an independent investigation to take place following a death in prison.
- Human rights laws have also helped patients to gain access to life-saving drugs and held hospitals to account when failures in mental-health care has directly led to suicide.
- In the Mid Staffordshire hospital scandal, 100 claims were made invoking the Human Rights Act claiming that gross or degrading treatment of patients, mostly elderly, had caused or hastened their deaths.
- Human Rights laws have also helped to establish that failing to properly equip British soldiers when on active duty abroad was a breach of their human rights.
And these are just some examples. There are many other cases where British people have needed our Human Rights Act to protect them against the excesses or failures of the State.
For example, last week it was reported that the police falsely accused a 17-year girl from Hampshire of lying about being raped. Instead she was arrested for ‘perverting the course of justice’, and the girl attempted to commit suicide. The failure of the police to properly investigate the girl’s allegations was an alleged breach of her human rights. Following complaints, a new police team took over the investigation and her attacker was properly investigated, charged and convicted of rape. He is now serving a six-year prison sentence. Four officers faced disciplinary action, and the rape victim won an out-court-settlement from the police.
Debaleena Dasgupta, the young woman’s lawyer, told The Guardian newspaper: “Many people wrongly assume the police have a legal obligation to investigate crimes. However, the only way victims of crime can seek justice for these sorts of issues is using the Human Rights Act, which imposes a duty on the police to properly investigate very serious offences.”
Another case also reported last week was that of Cheryl James who in 1995 was found dead from gunshot wounds at the Deepcut Barracks in Surrey shortly after she joined the army. An inquest at the time recorded an ‘open verdict’. For the past 20 years her father, Des, has been tirelessly trying to find out what really happened to his daughter. Consequently, last year the High Court quashed the verdict of the first inquest and ordered a new one. A pre-inquest review started last week.
Mr James said this couldn’t have been achieved without the Human Rights Act. The Act, said Mr James, enabled lawyers for the family to obtain documents held by authorities about the death of his daughter. “After a two-decade battle,” said Mr James, “we're finally close to gaining justice for Cheryl - but it's a sad irony that our new Government is now intent on axing the Human Rights Act, without which we could never have got this far."
Would these or similar cases have prevailed without our Human Rights Act? I certainly don't think they would have got anywhere under the old 1689 Bill of Rights, or under the Conservative's proposed new 'Bill of Rights' if there is no ultimate right to refer to the European Court of Human Rights in Strasbourg when our state courts fail to deliver justice (as sometimes we know they can).
Why are Human Rights so important to me?
I take Human Rights issues very seriously. Those in the media and politics who try to flippantly - and wrongly - claim that foreigners have the right to stay here under Human Rights laws because, for example, they have a pet cat, do a great disservice to the life-and-death issues that Human Rights really are all about.
My father escaped the Nazis to seek asylum in the UK
The European Court of Human Rights in Strasbourg has a bad press in Britain, but for thousands of desperate people it is their last shot at justice.
I am the son of an asylum seeker. If Britain hadn't permitted my father into the country, as he almost wasn't, he would have faced certain death, along with his parents - my grandparents - who couldn't get out and didn't survive. As a teenager he managed to escape the tyranny of the Nazis to seek asylum in the UK, and went on to join the RAF to help our war effort, and later became a naturalised British citizen.
Human Rights are too precious to demean or degrade. In this world, we need Human Rights more than ever. And we need Britain, a country historically famous for its liberal and compassionate values, to be leading the way in promoting and upholding international conventions on Human Rights. We should not be withdrawing from them as if they are of little value or consequence.
Jon Danzig is an award-winning medical and investigative journalist and Europe specialist. His recent articles for British Influence include Who do you think you are kidding, Mr Farage?, It’s the British media that needs auditing and Clacton and the politics of fear.