The Human Rights Act and Other Tall Tales

The Human Rights Act and Other Tall Tales

Not so long ago and not too far away, a Kingdom known for its uncodified constitution and love of parliamentary sovereignty passed into law a document granting rights to the good (and the bad). In the words of Theresa May, I am not making this up.

Not only has the Human Rights Act 1998 proved to be an enormously powerful piece of legislation on a constitutional level, it has fundamentally changed the relationship between individual and government. For this reason, it is one of the most important pieces of legislation that has ever been enacted. Perhaps even better than this though, it has had a rather unusual effect on the imagination of the population.

Let’s be honest. In popular dialogue the Human Rights Act has come to represent everything that people find ridiculous about the law; dusty old judges dancing to the beat of their own drum, the patently guilty getting away with it and the innocent paying the price.

Let’s be honest. In popular dialogue the Human Rights Act has come to represent everything that people find ridiculous about the law; dusty old judges dancing to the beat of their own drum, the patently guilty getting away with it and the innocent paying the price

But affording people human rights is a good thing, right? As it turns out, it is the most scary beastie in the Kingdom.

Once again, I am not making this up. If you pay attention to these stories, you may come away with the idea that this is one Illegal-Immigrant-Loving Honest-British-Tax-Payer-Hating-Europhile dragon and he is quite the hard worker. Already over the last decade, this storybook villain has given us such classic tales as Felix and His Illegal Immigrant (a story of an illegal immigrant who could not be deported because he owned a cat), Hello? Is it Me You’re Looking For? (the sex offenders who can call up to get their name removed from the Sex Offenders’ Register because they have a human right to privacy) and Rough Justice (the story that the prisoners are legally entitled to access hard-core pornography). I made those titles up.  But, I have to admit, I did not write the stories. I don’t have the imagination

The illegal immigrant cat lover came from the imagination of one Theresa May, full time Home Secretary and part-time travelling bard. That one was from her jackanory session at the 2011 Brighton Conference.  To be clear, she prefaced that immortal tale with the now-infamous line, ‘I am not making this up’. She was making it up.

Now in my story, I do not want to paint Theresa as the Wicked Witch of the West(minster), because she is attempting take by trickery that which we humans have a right to. In reality, we have done this to ourselves. Or at least we have acquiesced while others have done it to us, because for every story of the immigrant who we can’t get rid of and every horny prisoner that we help get their rocks off, what really bugs us is that the thing about human rights is that bad people get them too. In our story, we don’t get a perfect ending where good people triumph and bad people perish, but we want it.

But surely there are happy endings? The real ones, that is. What about the terror suspects detained without trial  who found protection under the Human Rights Act [1] or the ruling in favour of travelers who had their permit to reside on land revoked because they were travelers. [2] Let’s be honest about this, as a society we are ambivalent about these groups and we need to be honest about that. Foreign terrorists and gypsies aided by the HRA? You can see the headlines. Sorry, you have seen the headlines.

Surely that is not all? Well, there are also the drug-addicted and sex-addicted celebrities [3] and the child killers [4] who have their right not to be have their privacy invaded while engaging in these nefarious acts. Oh Theresa, I am sorry; when I said you were loose with the truth, I meant it in a good way!

And how about those unelected European judges? Believe me, they have a fair few stories too. Perhaps I am just jealous of the ability of others to write a good piece of fiction, or the fact that the titles of their stories are just better than mine, but ‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’.[5] Wonderful story; now if only it were true. No wait, sorry, that doesn’t matter.

As we all know, in every fairytale there is a moral. The moral of this one is that rights are actually uncomfortable. We do not really like them when illegal immigrants, terrorists, scroungers, cheats, sex offenders, prisoner or gypsies get them. But why should we like them, and much less why should we give human rights to those people? We should precisely because we do not want to. There is a reason that countries like America have put their Bill of Rights into their Constitution, only amendable by a super-majority vote in both Houses and the approval of the President. They are not really negotiable. There is a certain pull to an inalienable right for just this reason, and the Human Rights Act, just a simple Act of Parliament, is probably not the best way to protect them.

So what are we being offered by the Commission on the Bill of Rights? Well the Commission was created on 18th March 2011 (Happy Birthday, by the way) to as an independent body set up to:

…investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

Sounds great. It has taken submissions from a number of interest groups and is working on its proposal. By the time the Commission stopped accepting responses to its discussion paper in November of last year, it had over 900 submissions.  Sounds promising. However, columnist for The Guardian newspaper, Andrew Wagner, suggested in an article on the Commission earlier this month [6] that two things have struck him about the submissions; first, that the scale of submissions are actually very low if you compare it to the heated debate that goes on everywhere else on the issue of human rights. Second, of those 900 submissions, not one is publically available. This, he argues, is too important an issue to hide away from debate.

Now, there will always be criticism of how commissions are run and ultimately what they propose. What should be getting more interest is what they aim to do. The introduction on the Commission’s website uses language that implies that the aim is to go a step further than what we currently have, building on the rights already established and the jurisprudence already developed. Again, it sounds great, but dig a little deeper and it starts to feel like two different tales, perhaps more.

If you listen to the rhetoric of Theresa ‘I am not making this up’ May, it is very clear that this was not the aim of the Government when they set this Commission to work. However, since it is an independent commission, what is more important, is reading the (heavily edited) minutes of their meetings. Call me over-sensitive but I can’t help but be alarmed when an independent Commission on fundamental rights talks openly about their mandate to ‘rebalance’ and investigate ‘whether rights should be accompanied by responsibilities’. [7] Do not be under any illusions; this means making human rights conditional.

To give you a bit of background, there are two things that you should probably know about me. The first you have almost certainly guessed by now; I believe that human rights are a most difficult moral questions that societies face, but that is because they define not just who we are, but who we ought to be. For that reason, governments hate them. That is ok; that is the push and pull of competing interests and we should acknowledge that as a good thing. Second, I just moved to America to embark upon (yet another) law degree. This means that I not only meet a lot of Americans, but I study American Constitutional Law.

I am constantly struck by the way Americans view their constitution. The document itself and its jurisprudence have their own life. Non-lawyers are aware of important constitutional law decisions and pay close attention to the way the Supreme Court Justices decide their rights. It is a pillar of American understanding of who they are and how they work as a country. This is very attractive to an outsider, particularly an outsider who has attempted to pick their way through English constitutional law and found it an elusive and trixy mistress. So maybe a solid document to hang our hats on, a document to define the British people and their relationship with their government, and not something given to us by Europe would be the way to go. These are certainly compelling reasons to consider such a document, but I have the feeling, like a lot of others, that the Bill of Rights is not about codification of rights but rather erosion of them. Listen, I told you that I was a cynic.

The fact of the matter is that the American Bill of Rights is not a perfect document. In fact it is not even a very good one. It is actually a series of amendments to the original Constitution that is more about guarding state sovereignty than about the individual’s. The Bill of Rights has, time and again, been construed against the rights of the individual and in favour of the rights of states to liberty free from the Federal Government in Washington. More importantly, though, the Bill of Rights reflects the fundamental difference between the US model and the UK model; their rights are entrenched. Once the Bill of Rights was passed, it has stood. By this Government, attempting to repeal the Human Rights Act barely two decades into its existence, it once again shows not a commitment to rights but has proved that, as a society, we view them as renegotiable, changeable and conditional; all the things that rights ought not to be.

I would urge you to pay attention to the Commission on the Bill of Rights; read and re-read what they publish and make up your own mind. As for this cynical story-teller, I can only hope for the happy ending.

The fact of the matter is that the American Bill of Rights is not a perfect document. In fact it is not even a very good one.

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