What Does It Say About the Tories That They Want to Scrap Human Rights Legislation?
by Andy Worthington
May 14, 2015
Through our broken electoral system, the Tories have convinced themselves they have a mandate for even more of the destruction to the British state than they undertook over the last five years, propped up by the Lib Dems, even though the 50.9% of the seats that they took came with the support of just 24.4% of those eligible to vote.
The Tories’ relentless war on the British state and the British people
Since 2010, the Tories have been waging a relentless war on the British state, and on anyone who is not wealthy, privatising anything that was not already privatised, and using taxpayers’ money to make publicly owned enterprises more attractive to private buyers (as with the sell-off of the Royal Mail, for example), and also using taxpayers to fund huge vanity projects like the Olympics.
The Tories have also embarked on a disgusting assault on disabled people, via a callous review process designed to find them fit for work, which has resulted in numerous suicides, and they have also waged war on the unemployed, portraying them as feckless scroungers, even though there is only one job for every five people without jobs, and the only way out of this would be to set up a job creation scheme guaranteeing full employment (something that you will not find mentioned anywhere in current British discourse).
The assaults on the unemployed have come via the disgusting bedroom tax, removing what mansion-dwelling millionaires of the Tory cabinet regard as “spare” rooms in social housing, the benefit cap that has led to 50,000 families leaving London (to other places that could obviously do without the extra strain on their own resources) and various slave labour workfare schemes.
The Tories also passed legislation to privatise the NHS, tripled university tuition fees and persistently undermined state schools (despite almost all of them having been to private schools, and sending their own children there). They also presided over a horrendous housing bubble in London and the south east, and failed to do anything to rein in private landlords, who can charge what they can get away with without any restraints whatsoever on their behaviour.
The Tories also set their sights on the law, subjecting the legal system to cuts, and, in particular, slashing the legal aid budget, a move that not only empowers the rich to abuse the poor without fear of being challenged, but is also eating away at the very foundations of the British legal system, with trials already collapsing — allowing alleged criminals to walk free — because the barristers who are supposed to be involved can no longer afford to stay in business. In my work on behalf of Shaker Aamer, the last British resident in Guantánamo, I became involved with the lawyers’ campaign to save legal aid in February, a campaign that will, of course, be continuing as Michael Gove, the newly-appointed justice secretary, replaces Chris Grayling as the focus of well-deserved contempt.
The Tories’ assault on human rights
Allied to this, in many ways, is the Tories’ assault on on human rights. Last year, they sought to strip the citizenship of anyone of dual nationality that they regard as a threat (without any judicial process being involved), a chilling development that I wrote about here, here and here, and just before the election the Muslim community was alarmed by the passage of the Counter-Terrorism and Security Act 2015, rushed through amidst hysteria about ISIS, which, as Frances Webber of the Institute of Race Relations explained, applies “immigration policing measures — including border controls, carrier sanctions, refusal of entry, conditions of residence, the outsourcing of controls to local authorities, colleges and universities and other public bodies — to the national security policing of both British and foreign citizens, while at the same time doing away with or diluting judicial safeguards.”
Webber added, “[T]his national security policing is policing of thoughts, intentions, opinions and attitudes, in a climate in which the Muslim community is by definition suspect. Inevitably, the brunt of this policing will be borne by the Muslim community. Because immigration controls are the vehicle, more British Muslims will find the rights of citizenship increasingly precarious and contingent.”
Since their electoral victory last Thursday, the Tories have already launched new attacks on important safeguards that protect us from executive overreach, immediately launching yet another counter-terrorism bill containing proposals for “extremism disruption orders,” which were formulated by an extremism task force that was set up by David Cameron. First proposed by Theresa May at last year’s Conservative Party Conference, the plans were greeted with dismay by the Liberal Democrats, who vetoed them in March, but they were also opposed by senior Tories, as the Guardian reported yesterday:
When the home secretary showcased [the proposals] in her party conference speech in October Dominic Raab, then a backbench MP and now a justice minister, described them as “eroding basic principles of freedom that won’t make us safer”. He even suggested that her extremism disruption orders could be abused to slap down “monarchists, communists and even Christians objecting to gay marriage”’.
He was not alone. Senior Tories such as Lord Lamont and John Selwyn Gummer, or Lord Deben as he is now known, voiced serious free speech concerns over her plans for ministers to order universities to ban extremist speakers from campuses.
But opposition to her plans also ran right across government. The Financial Times reported that no fewer than seven Conservative cabinet ministers had by March raised objections to some of the proposals which are now to be fast-tracked in the Queen’s speech. Some of those ministers, such as Greg Clark, Nicky Morgan, Theresa Villiers and Sajid Javid are still in the cabinet.
After Theresa May first proposed the plans, the Guardian noted in an editorial:
The insuperable problem with these plans, as written, is that their net could potentially catch many more political activists than those about whom Mrs May complains. A formulation to prevent “harmful activities” is one such example. A draft which penalises “threats to the functioning of democracy” is another. The creation of “alarm” or “distress” is another. All are very low thresholds. Much too low. They might help stir the very radicalism they are designed to prevent. They are not just illiberal but counterproductive. They need to be rethought.
Shelved for now are other outrageous plans — a proposed “communications data bill,” more commonly known as the snoopers’ charter, which deals with the broad retention of records of phone calls, emails and other data, and which, of course, is alarming to many people after Edward Snowden’s revelations about government spying in the US and the UK (via the NSA and GCHQ).
The proposal to scrap the Human Rights Act
However, what is being pushed forward without hesitation is the proposal to scrap the Human Right Act and replace it with a so-called British Bill of Rights, an idiotic bit of knee-jerk populism that doesn’t even make sense, and will, hopefully, be unworkable.
The proposals are portrayed by the Tories as necessary to stop the UK from having its hands tied in dealing with foreign terror suspects, but this is a misunderstanding of what the Human Rights Act is, and, more fundamentally, its relation to the European Convention on Human Rights.
The European Convention on Human Rights, written in 1949-50, and with a prominent role in its drafting taken by the British Conservative MP and lawyer Sir David Maxwell-Fyfe, who had been a prosecutor at the Nuremberg Trials, drew on the Universal Declaration of Human Rights, ratified by the United Nations in 1948, and was designed to protect human rights and fundamental freedoms in Europe.
The Convention was a key founding document of the Council of Europe, and led to the establishment of the European Court of Human Rights. Established in 1949, the Council of Europe promotes co-operation between European countries in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation. Initially formed of ten countries, including the UK, it now has 47 member states, representing 820 million people in total.
The Convention came into force in 1953, and its ratification was — and still is — required for all members of the Council of Europe.
In addition, the Council of Europe is, it should be noted, an independent body, and is not to be confused with the European Union, although membership of the Council of Europe is a requirement for EU member states.
The Human Rights Act came many years after the creation of the Convention, although its origins were not contentious. As Bella Sankey, Liberty’s director of policy, explained in an article for the Huffington Post, “it was passed in 1998 with overwhelming cross-party support and Tory leadership endorsement,” and “was a long-held ambition of the Society of Conservative Lawyers.”
Moreover, as Keir Starmer, the former Director of Public Prosecutions, and the newly-elected Labour MP for Camden, explained in an article for the Guardian:
In the aftermath of the second world war, [when] nations came together to say “never again”, [t]hey established the United Nations and agreed a simple set of universal standards of decency for mankind to cling to: the Universal Declaration of Human Rights. These standards were intended to protect the individual from the state, to uphold the rights of minorities and to provide support for the vulnerable.
The idea was simple; these standards would first be enshrined in regional treaties such as the European Convention on Human Rights (ECHR) and then be given legal effect in every country. In the UK this was achieved when Labour enacted the Human Rights Act (HRA) in 1998.
As Starmer also noted:
[T]he HRA has heralded a new approach to the protection of the most vulnerable in our society, including child victims of trafficking, women subject to domestic and sexual violence, those with disabilities and victims of crime. After many years of struggling to be heard, these individuals now have not only a voice, but a right to be protected. The Tory plans to repeal the HRA, together with the restricted access to our courts already brought about by the restriction on judicial review introduced by Gove’s predecessor, Chris Grayling, will silence the vulnerable and leave great swaths of executive action unchecked and unaccountable.
The idiocy of the Tories’ plans was well-explained in an article for the Daily Telegraph by the barrister Matthew Scott, who stated that, in his new job, Gove “faces formidable problems: prisons groaning at the seams with frequently suicidal inmates, civil and criminal legal aid in a state of near collapse, criminal barristers threatening to strike, and many demoralised police officers wishing that they were allowed to do so.” He added, “Intractable though these problems may be, they are insignificant compared to those that face Mr. Gove should he try to implement one of the few concrete promises included within the Conservative Manifesto: repealing the Human Rights Act.”
Scott noted that the manifesto promise to scrap the HRA and replace it with a British Bill of Rights is frustratingly vague. It promises to “remain faithful to the basic principles of human rights,” and singles out the right to a fair trial as a “basic right” along with “the right to life.”
As he also noted, however:
There are other rights which any Bill faithful to the “basic principles of human rights” would surely have to contain: freedom from torture, freedom of religion, freedom of expression and, one would have thought, a right to a private and family life. Indeed, it is difficult to think of any of the rights in the original European Convention that could be excluded.
At this point, it becomes apparent that all this is about the perceived “rights” of foreign terror suspects. As the manifesto explains, a British Bill of Rights will “stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”
Scott responded to this by stating:
But what is a “spurious human rights argument?” Abu Qatada – the particular bête noire of the last two Governments — was able to argue that he should not be deported to face a trial which would be unfair because he would face evidence obtained under torture. It was hardly a “spurious” argument, and presumably he would still have been able to make it, and quite possibly succeed under a British Bill of Rights.
Even if Mr Gove succeeds in passing a British Bill of Rights, it won’t necessarily help in a similar case, should it arise in the future. One of the reasons Abu Qatada was able to avoid deportation as long as he did was that after losing in the British courts he took his case to the European Court of Human Rights in Strasbourg, which held that to deport him at that point would breach his right to a fair trial.
His appeal to Strasbourg had nothing to do with the Human Rights Act; his right to appeal derived from Britain’s adherence to the European Convention. Once the European Court had ruled in his favour the British Government could not deport him without being in breach of its Convention obligations. The same problem would arise again and again if the Human Rights Act were repealed. Unless the Council of Europe agreed to amend the Convention, the only way out of that would be for Britain to withdraw from it altogether.
That is possible, as Scott explained, because withdrawal, or “denunciation” in the Convention’s words, “is legally possible on giving six months notice” (although Scott notes that “a significant number of Conservative MPs led by the former Attorney General Dominic Grieve would oppose it”). However, as he also notes, “it would not be an easy option.” Because it was not mentioned in the manifesto, the House of Lords “would be perfectly within its constitutional rights to obstruct and delay.”
In any case, withdrawal from the Convention would mean withdrawing from the Council of Europe, and, as noted above, EU membership requires CoE membership. Are we to see a ridiculous situation whereby a referendum on leaving Europe, which David Cameron doesn’t even want, goes ahead and is promoted by the Tories, with ruinous effects on British business, simply because the Tories don’t like some of the minor constraints on their actions that are enshrined in human rights legislation?
To understand quite how ridiculous this is, it’s worth pointing out how the current situation actually gives the UK more, not less influence over the European Curt of Human Rights — providing yet more confirmation that the Tories’ plans are idiotic, designed to appeal to legally illiterate right-wingers, and demonstrating how much this particular batch of Tories hates being told what it cannot do.
As Bella Sankey put it:
The case for repeal appears to hinge on the popular deceit that the HRA gives Strasbourg judges the power to order British ones around. “We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the European Court of Human Rights (ECtHR),” implored then Justice Secretary Chris Grayling in October.
A slight issue with this: it’s rubbish. Under the HRA, Britain’s courts are only required to “take account” of ECtHR judgments, not follow them. British courts regularly depart from Strasbourg jurisprudence to take account of UK laws, traditions and customs, and the Supreme Court is already the ultimate arbiter of human rights cases here. In fact, when the Human Rights Bill was passing through Parliament, the Conservatives tried to amend it to say British Courts should be bound by Strasbourg — a proposal rejected by Parliament.
The Tories say the Bill will restore “parliamentary sovereignty” — but the HRA has increased British sovereignty. Pre-HRA, UK cases were argued directly in Strasbourg without any judgment from a UK court. Post-HRA, British judges rule on all human rights claims arising in the UK and influence Strasbourg jurisprudence in cases that proceed there. Introducing the Bill will increase Strasbourg’s supervision of the UK, making it more like a Court of first instance once again.
Under the Bill, people will still be able to take claims to Strasbourg once domestic litigation is exhausted. Axing our HRA will lead to an increase in cases going there, resulting in more negative rulings against the UK — and decade-long waits for those seeking justice.
Unless, of course, we withdraw from the Convention, and from the EU — standing alone in Europe with Belarus, a dictatorship that is the only other country that has not signed up to the Convention.
In addition, as Matthew Scott also explained, “withdrawal would have potential consequences on the devolution settlements in Scotland, Wales and Northern Ireland. The Acts of Parliament giving power to the Scottish Parliament, and the Welsh Assembly presuppose Britain’s membership of the Convention, as does the 1998 Belfast Good Friday Agreement. If Britain left the Convention, these would have to be amended.”
Withdrawing Britain from the Convention, therefore, “would for all practical purposes require the consent of each of the separate nations of the UK,” and it is already clear that Scotland will resist the Tories’ plans, and that Wales and Northern Ireland will too.
Everything about the new Tory government suggests that they will resist the truth about their plans — that they are unworkable and must be dropped — until they are forced to do so. I hope they end up belittled and humiliated, as they continue to try to belittle the institutions and laws that protect us, and to humiliate all but their own narrow band of supporters.
Defeating the Tories on this is hugely important, as the heading of my article is meant to explain. Just stand back and imagine what message it sends to the world when the UK, which created habeas corpus 800 years ago, says that it wants to get rid of human rights legislation. Is that the point of view of a responsible nation that believes that adhering to the rule of law empowers all of us, or is it the point of view of a would-be dictatorship?
In conclusion, please sign the 38 Degrees petition to save the Human Rights Act, which currently has over 150,000 signatures. You can, if you want, also sign the Change.org petition calling for “a national referendum on the planned abolition of the Human Rights Act,” which currently has over 200,000 signatures, although asking for a referendum is not my first option. Instead, I’d like the Tories to scrap their plans as unworkable — and fundamentally wrong.
Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.
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