Opinion: The Human Rights Act – undemocratic and illiberal

COE-Logo-Quadri

Liberals (with a small “L”) believe that society should not be governed by immutable dogma. New laws can be created when required and old laws changed or removed. Immutable revelation only applies to religion.

Not everyone believes that laws should be subject to the uncertainty of the democratic process. For decades the Soviet Union relied on the absolute principles of Marx and Lenin. Some religions provide God-given legal codes. But for liberals, laws are the work of humans and must be subject to democratic change.

It is therefore strange that the Liberal Democratics support the European Convention on Human Rights (ECHR), which cannot be amended or corrected by our democratic process, or indeed any democratic process. Changes to its existing provisions must be unanimously agreed by members of the Council of Europe (which despite its name is completely independent of the EU): its 47 member states include countries as diverse as Russia, Turkey and Monaco.

The ECHR was ratified in 1953 under the chairmanship of Sir David Patrick Maxwell Fyfe, 1st Earl of Kilmuir. Its eighteen articles are a comprehensive expression of basic rights and freedoms. But Sir David was not infallible.

For example, at the time Sir David drafted the convention, it is unlikely that he conceived that individuals would seek sanctuary in Britain while actively working to destroy our social fabric. Yet this is the situation today. Take the example of the Egyptian born cleric Abu Hamza, where the convention did not allow the UK to deport him if this would endanger his life; one reasonable viewpoint is that individuals who abuse our sanctuary should forfeit any right to our protection, and we should be able to deport them regardless of the risk to their persons. As it stands the ECHR imposes an unconditional duty of care. Whatever the rights or wrongs of this debate, the laws that govern behaviour cannot stand above democracy.

The 1998 Human Rights Act incorporated the ECHR into UK law. If we believe that human rights legislation should be subject to democratic review, and that no human laws are infallible, we have no choice but to repeal this act. Sir David was not a latter day prophet and our democracy must take back control of the law.

 

* David Cooper is a member and constituency treasurer of the Newbury Liberal Democrats and has been a party activist for over a decade. He is also secretary of Libdem ALTER (Action for Land Taxation & Economic Reform). The views expressed are his own.

Read more by or more about .
This entry was posted in Op-eds.
Advert

60 Comments

  • George Potter 20th May '15 - 3:57pm

    I’ll point out that actually the way human rights law is interpreted by the supreme court and the ECHR is constantly evolving over time – just like English common law – so the claim that the impact of the declaration on the law is something which can’t be changed is wrong.

    Also, the idea that people who “abuse” our hospitality or society should be denied human rights is utterly absurd. Either human rights apply to everyone or they don’t apply at all. A threshold at which point human rights cease to apply would be set by parliament and therefore open to abuse by any government in the future.

    Furthermore, if we were okay with, for instance, deporting Abu Hamza to his death then how is that any different from killing him ourselves? Why not just reinstate the death penalty and be done with it?

    Or how about torture – presumably if deporting someone to their death should be okay just because they spout hate against our society and system then why not torture them as well? It’s less extreme than killing them after all.

  • ‘… one reasonable viewpoint is that individuals who abuse our sanctuary should forfeit any right to our protection, and we should be able to deport them regardless of the risk to their persons …’

    Reasonable perhaps, but not liberal.

  • Everyone is entitled to their own opinion. Credit to LDV for publishing such a one as this.

    The ECHR should be brought up to date with the evolution of other European institutions, and the Council of Europe may very well have had its day as European politics polarises into European Union members and Russia plus its tributary states.

    The point about democratic control of the law is valid. Europe needs to press on with the process of reforming a bureaucratic intergovernmental structure into a democratic federal one.

    But to do as Mr Cooper suggests based on the issues he raises would be throwing the baby out with the bathwater on a scale I’ve never seen before.

  • @David Cooper – “It is therefore strange that the Liberal Democratics support the European Convention on Human Rights (ECHR), which cannot be amended or corrected by our democratic process, or indeed any democratic process. ”

    This is a misunderstanding of how the Convention operates and of how it is incorporated into (and applies in) UK law.

    As for the Abu Hamza argument: I believe in government under law. Yes, that does mean I think the Government should obey the law even where we don’t like the person who’s on the receiving end. Personally I think we concentrate too much on the “rights” aspect of human rights, and not the corollary responsibility on the state to act or not to act a certain way.

    The worst thing about the Conservatives’ plan for human rights is that the issue they are seeking to resolve (European/”Foreign” courts overruling our own) doesn’t really exist, and certainly not in the way implied. This is red meat that they’re chucking to their activists.

  • It’s worth saying that between the ratification of the ECHR and the passage of the HRA, the UK was still bound by the terms of the treaty, and would remain so even after the Act’s repealing.

    George Potter is spot on, incidentally.

  • Matt (Bristol) 20th May '15 - 4:22pm

    There seems to be a complete lack of recognition that every day, the ECHR is in usage for quite benign, local, human-centred purposes, like being considered with regard to decisions about an elderly person with dementia going into a care home.

    Where it is considered seriously it often makes the state, officialdom or the NHS stand still and consider the needs of a person, rather than just rolling onwards in the name of efficiency and costs. It has changed wrong practice, extracted money out of government that it was otherwise loth to spend and protected people from significant harm.

    The ECHR is not something only lawyers care about – it is a frontline, bread-and-butter, code of practice for doctors, social workers, and the like. Go on a hospital ward and you will see it in practice, and its potential to help people, not hard them, It is capable of a variety of interpretations, and does not admit of a mechanical, robotic usage. That would be doing it wrong.

    All this talk of ancient theocracies and terrorist murderers is distractionary claptrap.

  • Bryan Morton 20th May '15 - 4:25pm

    @Matt (Bristol)
    “It has […] extracted money out of government that it was otherwise loth to spend”

    And there, perhaps, is the real reason why an austerity-obsessed government would want to get rid of it.

  • I’m really glad to see that LDV posted this. I was struggling to find any reasonable counter arguments to not scrapping the Act.

    However, here is where I have a problem with what David Cooper claims:

    “For example, at the time Sir David drafted the convention, it is unlikely that he conceived that individuals would seek sanctuary in Britain while actively working to destroy our social fabric.”

    In my humble opinion, it all comes down to what the role and goal of government is. I don’t believe that the government can define what our “social fabric” SHOULD BE, and to try to keep it that way, as per the preferences of a select few people. Yes, we should protect the SAFETY of the individuals in our society, that should be the most important goal of government. But I can’t see how it can be democratic that a government should choose that “this is the way we like an ideal Britain to be, so we are going to work to conserve our preferences, or to halt change which is actually happening, at all cost”… with that cost being the safety and dignity of a human being.

    I’m no expert, and this may be a simplistic way of seeing it, but my understanding is that society naturally evolves and changes. It always has and it always will. Government intervention should be to work to protect the safety of the people of the world, not to force an idealistic view of society, which seems undemocratic and divisive.

    Or am I missing the point?

  • David Cooper 20th May '15 - 5:14pm

    @George Potter “ECHR is constantly evolving over time – just like English common law”
    You are correct that the interpretation of ECHR is evolving, but English Common law is a bad example, since it is not based on statute. So ECHR is not like English common law, since it is based on statute which is not subject to democratic change.

    @Matt (Bristol) “ECHR is in usage for quite benign”
    Mostly benign but entirely undemocratic.

  • Sir Norfolk Passmore 20th May '15 - 5:16pm

    Credit to LDV for publishing this, but the logic of the article is fundamentally flawed throughout.

    The logic of the author’s position is that majority support alone is not only necessary but sufficient to justify any wild swing in the rules that apply. Does the author, for example, suppose that a democratic mandate is enough to overturn a fundamental constitutional principle like equality before the law – that we should be able to remove protection of certain rules from a disliked minority, for example? That’s a recipe for a collection of rash and populist decisions with no underlying principle.

    The author also appears to equate the judicial application of human rights legislation to a religious “revelation”. That’s just nonsense – judges can get it wrong of course, but they are trying to interpret the intention of legislators in passing the original human rights legislation in a way which is supportable based on the words actually used, and which is consistent with previous jurisprudence.

    The piece also misunderstands the effect of the large majority of human rights decisions. It’s very rare for the democratic will to be “thwarted” as the popular press might put it. The actual message is almost always – “you can do this, but you need to find a WAY of doing it which does not infringe this right in this way and to this degree”. That’s immensely frustrating and embarrassing for governments but rarely does it frustrate them in the way the red and blue-tops say.

    The piece is also historically flawed. The idea that there was nobody around in 1953 who fundamentally wanted to tear up our social fabric is just ludicrous.

  • Richard Wingfield 20th May '15 - 5:19pm

    The posters above have succinctly pointed out the many flaws in this article, however I’d like to respond to the suggestion that the ECHR is undemocratic. It is no more undemocratic than any other international treaty since all treaties require unanimity amongst parties in order to be amended. The only distinction between the ECHR and all other international treaties is that the ECHR has been incorporated into UK law via the Human Rights Act. So either David Cooper believes that all international treaties are undemocratic and so should not be supported (an absurd claim) or that the incorporation of an international treaty into domestic law is undemocratic which is also absurd because there is nothing more democratic than a legislature, freely elected, passing legislation.

    I also struggle with the suggestion that ” If we believe that human rights legislation should be subject to democratic review, and that no human laws are infallible, we have no choice but to repeal this act”. I believe that all legislation, including human rights legislation, should be decided by a democratically-elected legislature and that no legislation is infallible. But I fail to see how that then requires the HRA to be repealed as opposed to reviewed and amended as and when necessary.

  • Sir Norfolk Passmore 20th May '15 - 5:20pm

    David – common law is a fair comparator. Mostly, if someone is talking about “the English common law” they are talking about interstitial common law which is primarily application of statute to situations not specifically envisaged – the gaps between the words if you like – rather than pure common law (matters never subject to legislation like a few torts etc).

  • Well I have plenty of concerns about the ECHR and the HRA (some are as too weak, some areas need splitting out to provide clarity) but this article seems to confuse liberalism and democracy and then go downhill from there.

    Firstly liberalism and democracy are different concepts this article seems to assume that they are inseparable.

    “the European Convention on Human Rights (ECHR), which cannot be amended or corrected by our democratic process”

    It can be repealed by our democratic processes so if it is considered so terrible that is an option for “correction” but you need to provide a better critique than you do to justify any change.

    “If we believe that human rights legislation should be subject to democratic review, and that no human laws are infallible, we have no choice but to repeal this act.”

    Your conclusion does not follow from your premises. The fact that the act can be repealed shows that the legislation can be subject to democratic review. If you want to repeal the act you have to come up with a better case and say what you want in its place, this is where the Chris Grayling came unstuck so embarrassingly, perhaps if you can provide a workable alternative you should pitch for a the job of lord chancellor as the Tories have so far failed to find one who will implement the change..

    “Not everyone believes that laws should be subject to the uncertainty of the democratic process. For decades the Soviet Union relied on the absolute principles of Marx and Lenin. Some religions provide God-given legal codes. But for liberals, laws are the work of humans and must be subject to democratic change.”

    Dreadful straw man, there are degrees of “democratic uncertainty.” Let’s try and think of some obscure country that does things differently to the soviet union but not how David Cooper thinks they should be done, hmm, oh yes; the USA. The US has rights that are in their constitution which allows democratic amendment but makes the “tyranny of the majority” more difficult.

    Perhaps the people who moan about the HRA should come up with an alternative and then espouse its virtues, if they think the current act is so broken. The absence of an alternative proposal that stands up to scrutiny perhaps says more than all the articles trying to throw rocks put together.

  • Mischievous thought…. as the Human Rights Act enables people to bring actions in the UK courts rather than having to go to the European Court of Justice, it becomes much harder to bring actions for breaches of human rights if it is removed. So… would repealing the HRA enfringe our right to a fair trial, and itself be something we could take to the ECJ… I guess the answer is “no”, but it could be a fascinating case…

  • Mavarine Du-Marie 20th May '15 - 7:03pm

    I believe with the HRA it is not to find out what difference the act makes, which I think is on some political parties agenda. But it should be to arrive at and to clarify the HRA meanings as programs of behaviour for modifying the existent world. From this standpoint, the meaning as a human rights formula is practical and moral, not merely in the consequences that flow from accepting the conceptual content that is true, but as regards that content itself. Therefore repealing the whole thing is unnecessary in my opinion.

  • It is only when there are hard cases that rights become important. ‘You have a right to any opinion you want, so long as it is not too upsetting’ is no right at all.

    Rights become meaningful when we defend those we fundamentally disagree with; it is easy to agree to the rights of those who are to our taste.

    This piece brings to mind a comment from JS Mill “I believe this view of the subject is mostly confined to the sort of persons who think that new truths may have been desirable once, but that we have had enough of them now.

    Sir Norfolk Passmore and Psi make all the pertinent points: ‘democracy’ in this article, appears to refer to majority opinion, a fundamental misjudgment of Liberalism. Incorporating the ECHR into UK law actually provides a mechanism whereby UK judges have to interpret the convention and so have more involvement in how interpretation of human rights evolves.

  • Keith Golder 20th May '15 - 9:36pm

    Liberals also believe in preventing arbitrary abuse of power by the state. The founding fathers of liberalism espoused the principle of a separation of powers on that very basis. HRA 1998 is, as best it can be in our system of parliamentary supremacy, the best we can do to prevent the rights of citizens being arbitrarily violated by the State.

    What does it say about the defence of individual’s rights in the UK if government is able to repeal such important legislation without opposition.

    Our constitution is not contained in a single written document like some democracies. Ourconstitution is contained in a rich fabric of statues and customs, Magna Carta, The Bill of Rights (yes we already have a statute called that), the Representation of the People Act, the Equality Act, the Scotlsnd Act…etc. Should liberals stand by and let government repeal any of those without a fight?

    HRA 1998 is a statute of constitutional significance. Whilst we can debate how it is applied, liberals above sll others, should be the first to defend it.

  • David Cooper 20th May '15 - 10:34pm

    @Richard Wingfield
    International treaties may be undemocratic, but are sometimes needed to regulate relations between countries. Where laws can be done locally they should be done locally. International treaties are not the right way to handle human rights legislation.

    @Martin “You have a right to any opinion you want, so long as it is not too upsetting”
    Abu Hamza was found guilty of inciting violence, not of expressing disagreeable opinions. ECHR prevented his highly desirable deportation, for example to Yemen which requested his extradition.

  • “Also, the idea that people who “abuse” our hospitality or society should be denied human rights is utterly absurd.”

    No it is not, a big abuse of the human rights legislation has been by those who have committed crimes (including murder) against members of our society, in their attempt to avoid justice. If the deportation of a criminal back to their home country carries the risk of them being “denied a family life”, tortured or even killed then sorry that is their responsibility.

  • Eddie Sammon 21st May '15 - 12:12am

    I said the other day that so far many people seem to be supporting it because it has the words “human rights” and “act” in it, so it looks like a good thing to champion; however we need to look at the details.

    I don’t really buy the undemocratic argument, but I think it could do with more democratic control.

    What I think this comes down to is a load of tories being against it because it has the words “European” and “human rights act” in it.

    You see, the left and the right are often similar in jumping to conclusions. I don’t think it is a priority to remove the UK from this.

    Best wishes

  • Excellent article. The first duty of a government is to protect it’s citizens. 1953 was when Stalin died. The communists who took over Eastern Europe had slaughtered those who opposed them and had fought the Nazis. Communist Parties in France and Italy were very powerful and were threatening democracy. W Germany had been extensively infiltrated by communists. The ECHR was an attempt to prevent communism take over Western Europe.

    There is no evidence that those who drafted the ECHR imagined that refugees would try to murder British citizens. Up to 1953 refugees either fled Nazi or Communist regimes. If those people who say we should accept people into this country who either undertake or threaten acts of violence , then they should accept responsibility . If a refugee commits an act of murder , then those who support them living here should commit suicide. Why should a parent grieve for a murdered child because someone said that refugee could live in this country? The same way a banker should pay for their losses and not a shareholder or taxpayer. It is time people were made to accept responsibility for their words and deeds. A captain of a ship is held responsible for the actions of the crew even if they are not on board.

  • Toby Fenwick 21st May '15 - 7:55am

    @Kirsty: it depends what you intend to achieve by scrapping the HRA. If you believe that the rights guaranteed by the ECHR are unnecessary or unworthy of protection – avowedly not a position I share – then you should repeal the HRA and withdraw from the ECHR.

    If you don’t then you don’t withdraw from the ECHR, in which case there is no benefit from repealing the HRA as the Act simply allows our domestic courts to apply the same rights as the court in Strasbourg.

  • Ive never quite understood the use of the Abu Hamza case against the HRA and the ECHR – the inefficiency of the system yes, but the actual rights contained within both the Act and the Treaty??? The European Court ruled against him. He was extradited to the U.S.

    Rather than rewriting our human rights legislation perhaps we should concentrate on the failings of the security services (it took more than 5 before charges were brought against him in this country) , the extradition process, and ways in which the backlog at the European Court can be addressed (something the current proposals don’t if Britain is expelled or withdraws from the ECHR).

  • David Cooper 21st May '15 - 8:58am

    @Toby Fenwick

    You don’t have to believe that the most rights embodied in ECHR are unnecessary or unworthy of protection (and indeed I don’t). You just have to believe that at least one aspect is wrong and in urgent need of reform. Since the ECHR itself can’t be reformed democratically, even to the extent of a single clause, the only democratic course available is to withdraw, i.e. to repeal HRA.

    @Charlie “It is time people were made to accept responsibility for their words and deeds. ”
    Agreed. It is not illiberal to declare that aliens who advocate violence and murder should be deported regardless of the risk to their persons. The liberal position is people must accept responsibility for their words and deeds; society has no duty of care to those that seek its protection while advocating violence against it, and the ECHR is utterly wrong to impose such a duty.

  • Charles Hamilton 21st May '15 - 10:59am

    Hi David – to your credit you don’t repeat the usual errors about the way the HRA and ECHR operate. However, you do in my view make some new ones.

    The ECHR is not immutable dogma. Neither is it incompatible with parliamentary sovereignty or immune to change from democratic processes. It can be changed in several ways: such as through development by CoE member states of new protocols to the Convention, by reform of the systems of the Court (as is currently under way), through the constructive judicial dialogue between domestic courts and the ECtHR (as has recently happened on whole-life sentences) reflecting the will of Parliament, and through the ‘living instrument’ doctrine whereby the jurisprudence of the court evolves to take account of developing circumstances.

    Maxwell Fyfe was not infallible (“I am not going down in history as the man who made sodomy legal”, he said), so he would hardly have foreseen the ECHR being used in Dudgeon v UK to achieve just that in Northern Ireland – a victory for liberty and democracy, and evidence of the ECHR’s ability to keep step with prevailing attitudes and norms.

    No law should sit above democratic review. But many countries have basic constitutional texts (often including fundamental rights) which are protected from being amended by a simple parliamentary majority. The UK, with its convention of parliamentary sovereignty, has no such laws. But it is reasonable that our fundamental rights should be a little harder to do away with than ordinary laws. That is – I hope – achieved by the joint effect of international and domestic statute law and common law. But all are still, ultimately, subject to the will of parliament and the people.

    The UK joined the ECHR and agreed to be bound in international law by judgments of the Strasbourg Court, through the usual democratically accountable method of signing and ratifying treaties. Parliament further cemented the UK’s relationship with the ECHR through the Human Rights Act. Nothing undemocratic about any of that. As a nuclear option, member states’ parliaments can vote to leave the ECHR. But since it’s working well and responding constructively to its critics, there’s currently no need.

    You cite the example of Abu Hamza. It’s disappointing that a liberal seems to have bought the right-wing press’s narrative on deportation hook, line and sinker. “Actively working to destroy our social fabric”, you say? To withdraw someone’s right to protection and deport them, even if their life is in danger, is tantamount to imposing a death sentence for the nebulous offence you describe. If a person is saying or doing something unlawful, they can be sanctioned and silenced through the criminal and/or civil law. But if, as liberals, we don’t believe in people’s right to say things which we disagree with, but are not illegal, then what do we believe in?

  • False argument, supported by incorrect evidence.

    But welcome for the debate that it has provoked.

    I for one will be wholeheartedly defending the HRA, as the Tories (probably shield by a confused Labour front-bench) try to disassemble it in wholly scurrilous manner. Aided and abetted by our right-wing press, whose existence, under Art 10, I will support to my dying breath.

    And for me, that is a central tenet of being a Liberal, defending the seemingly indefensible, because to do anything less is akin to unwittingly inviting one’s own and others’ oppression and tyranny.

  • David Cooper 21st May '15 - 12:57pm

    @Charles Hamilton “The UK, with its convention of parliamentary sovereignty, has no such laws.”

    Then you must explain why in 1998 the combination of parliamentary sovereignty and common law, which protected individual liberty for longer than ANY other country in mainland Europe (with the possible exception of Switzerland) was suddenly deemed inadequate,

  • Charlie

    “There is no evidence that those who drafted the ECHR imagined that refugees would try to murder British citizens.”

    You are being very unfair on the drafters. It would be a ridiculous assumption to make that among refugees arriving in the UK there would not include people who would commit every sort of crime (as there would be in the existing population). Your logic suggests that the drafters assumed that those refugees were saints, not a plausible position.

    I would imagine that the assumption of the UK drafters would have believed that if someone arrived here and committed murder they would have been dealt with und the UK laws on murder.

    “If a refugee commits an act of murder, then those who support them living here should commit suicide.”

    I’m not sure if you are being serious here. If someone commits murder having previously committed shoplifting, should those who don’t support life imprisonment for shoplifting commit suicide?

  • Also Charlie

    “If a refugee commits an act of murder, then those who support them living here should commit suicide.”

    What is your position on tourists? Temporary workers? Foreign Students?

    What is so special about refugees?

  • David Cooper

    “[…]you must explain why in 1998 the combination of parliamentary sovereignty and common law, which protected individual liberty for longer than ANY other country in mainland Europe (with the possible exception of Switzerland) was suddenly deemed inadequate”

    I think sadly the evidence for that is what happened post 1998. Also I think your interpretation of the common law “protected individual liberty” is a little misplaced if you look back at the history from the 17th century onwards there was plenty of denial of individual liberty that better protections would have helped with. I’m not a fan of dumping on the past but I don’t agree with viewing it through rose-tinted glasses either. If you are talking about it protecting the more powerful elements of society I will broadly give you that but liberals tend to want to go further than that.

    Personally I would be much in favour of copying more from Switzerland, but I would note that they are also a member of the Council of Europe so bound by the convention too.

  • Charles Hamilton 21st May '15 - 2:02pm

    @David Cooper “Then you must explain why in 1998 the combination of parliamentary sovereignty and common law … was suddenly deemed inadequate”

    The reasons for the 1998 incorporation of the Convention rights in domestic law through the Human Rights Act are well-rehearsed. There was cross-party support for the HRA, on the basis that ‘bringing rights home’ would reduce the need for costly and time-consuming litigation in Strasbourg, would enable the development of uniquely British human rights case law, would enhance the protection of human rights for people in the UK (by requiring public authorities to comply with human rights, and giving people a means of redress if they didn’t). These aims have been achieved in spades and the arguments for the HRA are at least as strong as they ever were.

    9/11 and the struggle against home-grown extremism saw New Labour distance itself from its early pro-human rights zeal in a fit of expedience and self-interest which disgraced that party, and which principled. Liberals vehemently opposed.

    The bulk of human rights cases (and human rights-based arguments used out of court to hold the state to account) have not focused on criminals and terrorists, but on groups such as older people, children, people receiving health and care services, victims of crime, those neglected, abused or killed by the state, and so on.

    The tiny number of cases deemed to favour the undeserving (terrorist suspects, criminals etc) have been wilfully misrepresented and blown out of proportion by demagogues in successive governments, who are outraged at these judicial and democratic constraints on their executive power. With their allies in the media, they’ve monopolised the debate for too long. Let’s not give them any more help.

  • matt (Bristol) 21st May '15 - 2:03pm

    Coming back to this again with some more thoughts:

    ‘… For example, at the time Sir David drafted the convention, it is unlikely that he conceived that individuals would seek sanctuary in Britain while actively working to destroy our social fabric.’

    David, can you explain why anyone involved in criminal law, government and legal advice in the UK in the 1940s would not have been reasonably aware of:
    1) the Sydney Street ‘siege’ of 1911, in which immigrant anarchists were shot dead by police (at which Churchill himself was physically present)?
    2) the IRA bombing campaign (the ‘S-Plan’) of 1939/1940 in the UK?

    I think you cannot prove that Maxwell-Fyfe was assuming there was no possibility of such events happening again in the UK. It would seem more likely he assumed the ‘human rights’ he was drafting could be interpeted and applied in such a way that successful prosecution and combatting of terorism would not be prevented.

    You do have some decent arguments for reform of the European Council, but in arguing that we are now facing a historically exceptional threat (some kind of epic ‘clash of cultures’) that makes removal from the European structures altogther urgently necessary, you are promoting a myth.

    In addition – are you saying that – with the proposed ‘British Bill of Rights’ which it is anticipated to replace the HRA so far unavailable to us – you would prefer this as yet unwritten document being prepared by Michael Gove and his minions over the existing Human Rights Act in all circumstances?

  • “Then you must explain why in 1998 the combination of parliamentary sovereignty and common law, which protected individual liberty for longer than ANY other country in mainland Europe (with the possible exception of Switzerland) was suddenly deemed inadequate,”

    There is also the other question: why weren’t human rights incorporated into UK law back in 1953?
    It would not surprise me that part of the reason was to ensure that litigation costs were kept high so as to discourage frivolous litigation.

    I think there is a good case for reviewing the legal foundations and framework we use for human rights and as David has done, tried to determine if these are actually compatible with both Liberal and democratic principles. This is to a large extent separate to the actual content of the legislation.

  • Charles Hamilton 21st May '15 - 4:09pm

    @Roland “why weren’t human rights incorporated into UK law back in 1953? It would not surprise me that part of the reason was to ensure that litigation costs were kept high so as to discourage frivolous litigation. ”

    There was no such cynical motive. It’s simply the case that the development of the ECHR, its associated institutions and their position in UK law has been gradual. After drafting in 1950 came signature, then ratification in 1951. Then it entered into force in 1953. The Court was created in 1957, then in 1966 the UK accepted the Court’s jurisdiction and the right of individual petition. Finally the Convention rights were incorporated into domestic law with the HRA in 1998, which came into force in 2000. Each step along the road has been taken with due consideration, in light of the realisation that things were working as they should, so there was nothing to fear from continuing the journey.

    As for this point about ‘frivolous’ litigation – there is a persistent but false perception that many or most human rights cases are not serious. Firstly, the HRA and ECHR have mechanisms for dismissing cases which do not meet a threshold of severity (e.g. the infamous case of Dennis Nilsen’s absurd attempt to get hardcore porn in prison was thrown out before it reached court). Secondly – try telling the many people in genuine need, who have used the HRA as their last resort, that their cases are frivolous. The examples are too many to mention, but http://rightsinfo.org/stories/ has a few. These good news stories sadly seldom make the front pages. People would rather read about the serial killers and terrorists – but those are only a small part of the picture.

  • David Cooper 21st May '15 - 5:12pm

    @MatGB “are you saying that we don’t mind when people are tortured or killed overseas now”

    Precisely: in some cases I don’t mind. Once Abu Hamza had been found guilty of inciting violence against non Muslims, we had no moral duty of care towards him, only a moral duty to deport him. What happened to him beyond our shores should have been his problem, not ours. The legal imposition of a duty of care by ECHR was morally wrong, but the ECHR is immune to democratic reform and cannot be fixed.

  • matt (Bristol) 21st May '15 - 5:23pm

    Right, that does it, I’m going to get that annoying little yellow bird against my name as soon as I can find my membership card. I’m incensed that glib views like that can be claimed to represent the party.

  • Charles Hamilton 21st May '15 - 5:34pm

    @David Cooper – your true colours are starting to show.

    Cruel and unusual punishment has been prohibited in England since the Bill of Rights of 1689 – a provision which developed into the prohibition on torture in UDHR and ECHR. Knowingly enabling someone’s torture or execution abroad is morally equivalent to carrying out such punishment in this country. Borders have no moral relevance to this question. Presumably, as a liberal, you are not in favour of torture or the death penalty in the UK, are you? For such crimes as incitement to violence? What on earth does being a liberal actually mean to you?

    The ECHR is not in fact, as I have explained above, immune to democratic reform. It needs at most only minor change – change which is currently under way.

  • David Cooper

    “Once Abu Hamza had been found guilty of inciting violence against non Muslims, we had no moral duty of care towards him, only a moral duty to deport him.”

    What if he had been convicted of a minor assault? Burglary? Shoplifting? littering?

    Can you list the deportable offenses and those that are not?

  • David Cooper 21st May '15 - 6:32pm

    @Charles Hamilton
    If you cannot tell the moral difference between on the one hand committing violence against a person, and on the other hand not protecting that person from violence, I suggest you study some morality.
    I disapprove of torture and most judicial execution, in the UK or abroad. But I would not care if this befalls Abu Hamza if deported abroad, and don’t think our government should have a legal duty to care.

  • Malcolm Todd 21st May '15 - 6:40pm

    Can we apply Charlie’s logic to the anti-HRA brigade and suggest that if anyone is deported from here to a country where they are subjected to torture then anyone who supported their deportation should electrocute their own g*nit*ls?

  • Malcolm Todd 21st May '15 - 6:42pm

    “I disapprove of torture and most judicial execution, in the UK or abroad. But I would not care if this befalls Abu Hamza if deported abroad.”
    Your second sentence flatly contradicts the first.

  • Charles Hamilton 21st May '15 - 7:01pm

    @David Cooper” If you cannot tell the moral difference between on the one hand committing violence against a person, and on the other hand not protecting that person from violence, I suggest you study some morality.”

    I’m not just talking about the negative failure to act (“not protecting” someone). I’m talking about the positive action: deliberately and knowingly enabling violence, by delivering someone into its clutches. Here’s an analogy for you:

    Scenario 1: a mob is chasing a man down the road, intent on lynching him. You watch as they pass and, fearing for your safety, you do not intervene to protect him.
    Scenario 2: a mob is chasing a man down the road, intent on lynching him. He hides in a police station. But the police turn him out into the street, where they know it is likely he will be killed.

    In scenario 1, you have little if any responsibility for his fate.
    In scenario 2, it is as if the police had murdered him themselves.

    “I disapprove of torture and most judicial execution, in the UK or abroad.”
    You disapprove, but not enough to want to prevent it from happening. To put it mildly, that is not a morally consistent position.

  • David Cooper 21st May '15 - 7:15pm

    @Charles Hamilton
    Analogies are always fraught, but let’s go with yours.

    Scenario 2: a mob is chasing a man down the road, intent on lynching him. He hides in a police station, WHERE HE STARTS ATTACKING THE POLICE. But the police turn him out into the street, where they know it is likely he will be killed BUT NO LONGER CARING.

    Are the police wrong to no longer care?

  • Charles Hamilton 21st May '15 - 7:55pm

    Now I think you’re just trolling. That cannot be how you understand the role of the police or, by analogy, international justice. If he starts attacking the police, they must arrest him, put him in the cells and charge him with an offence. In any civilised, liberal country, the police have a duty to protect everyone in their care, even criminals, from unlawful harm. Precisely the same principle applies to our government.

  • Yes, they would be wholly in the wrong.

  • David Cooper 21st May '15 - 8:35pm

    @David-1
    Are they wrong because they are failing in their special duty as “police”, or as “protectors” who have taken someone in? Bear in mind that the UK has no special “police like” authority. Consider

    Scenario 2: a mob is chasing a man down the road, intent on lynching him. He hides WITH A FAMILY WHO OFFER PROTECTION, WHERE HE STARTS ATTACKING THEM. But the FAMILY turn him out into the street, where they know it is likely he will be killed BUT NO LONGER CARING.

    Surely the family is morally right ?

  • David Cooper

    As you avoided the question last time, let’s try with this example.

    Scenario 2: a mob is chasing a man down the road, intent on lynching him. He hides in a police station, where he rubs out their fantasy football results written on a whiteboard. The police turn him out into the street, where they know it is likely he will be killed.

    Do you consider it ok that they don’t care and consider death the appropriate punishment for rubbing out fantasy football scores?

    If you are ok with sending someone to their death then I assume you have a line?

  • David Cooper

    “He hides WITH A FAMILY WHO OFFER PROTECTION, WHERE HE STARTS ATTACKING THEM. But the FAMILY turn him out into the street, where they know it is likely he will be killed BUT NO LONGER CARING.
    Surely the family is morally right ?”

    That depends on the family, if the family is a single mother with young children she has no choice to avoid serious harm. If the family is a retired Royal Marine and his six Paratrooper sons and the man is a weedy littly guy easily restrained until the police can arrive l, if looks a little different.

    The UK kept Abu Hamza as a category A prisoner in Belmarsh. When a country asked for him and said they wouldn’t torture or kill him he was extradited.

  • SIMON BANKS 21st May '15 - 9:14pm

    Some idea of basic human rights has been around since the Middle Ages. Specify “English” and you find the barons and clerics of Magna Carta appealing to what they claimed were basic rights of all free Englishmen (ironically claiming these rights had flourished in Saxon times and been suppressed since) and the Levellers too thought in terms of basic English rights. It really doesn’t matter to this argument whether the basic, inalienable rights belong to one people or are, as the Preamble to the American Declaration of Independence claims, universal. The argument about rigidity is the same.

    Of course, if these rights are defined in great detail and entrenched in ways that cannot be altered, there is a democratic problem, but I can’t see how that applies to the current legal position. It’s also worth reminding ourselves that Liberals are Liberals with a big L. Would we argue that the belief that all humans have value and are entitled to a say in how they are governed was illiberal because it was a quasi-religious dogma we might want to ditch some time?

  • David Cooper 21st May '15 - 9:15pm

    @Psi ” I assume you have a line”
    Yes. When Abu Hamza was found guilty of soliciting murder, he crossed the line and forfeited his moral right to any duty of care from the UK.

  • David Cooper

    So incitement to murder is over your line (I’ll assume that would mean murder is too) but what is not. So Rape? GBH? ABH? “Incitement to hate” (rediculous crime though that is)? Common assault? Mugging? Pickpocketing? Burglary? Shoplifting? Speeding (if so by how much)? Criminal damage? Littering? Dog fouling?

    We are talking about at what point you will stop being complicit in his execution and torture so it helps to know the line.

  • David Cooper 21st May '15 - 9:37pm

    @Psi “it helps to know the line.”
    I’m not an infallible prophet, so I’ll duck your question. Whatever answer society produces, it should be subject to democratic amendment and not enshrined an an international treaty.

  • @Charles Hamilton & Psi – unfortunately your scenarios are based on a false premise: the man running away from the mob hadn’t inciting the mob…

  • Malcolm Todd 21st May '15 - 10:41pm

    “When Abu Hamza was found guilty of soliciting murder, he crossed the line and forfeited his moral right to any duty of care from the UK.”

    So why not just beat him to death on the street, rather than going to all the trouble of deporting him?
    Oh, but you’ve said you don’t want him to be tortured or killed in the UK. In what way are your moral principles distinguishable from mere squeamishness?

  • The Bedu have a tradition of offering hospitality to anyone for 3 days but this does not include sheltering those who would commit murder and rape against them.

  • Roland

    “unfortunately your scenarios are based on a false premise: the man running away from the mob hadn’t inciting the mob…”

    My example does not require that premise. I believe in the rule of law and right to a fair trial. There is no excuse for a mob lynching.

  • Charlie

    “The Bedu have a tradition of offering hospitality to anyone for 3 days but this does not include sheltering those who would commit murder and rape against them.”

    I believe the UK should have a different tradition where the state extend very long periods of “hospitality” to those guilty of rape and murder. Just much more secure than the Bedu would offer.

Post a Comment

Lib Dem Voice welcomes comments from everyone but we ask you to be polite, to be on topic and to be who you say you are. You can read our comments policy in full here. Please respect it and all readers of the site.

If you are a member of the party, you can have the Lib Dem Logo appear next to your comments to show this. You must be registered for our forum and can then login on this public site with the same username and password.

To have your photo next to your comment please signup your email address with Gravatar.

Your email is never published. Required fields are marked *

*
*
Please complete the name of this site, Liberal Democrat ...?

Advert



Recent Comments

  • User Avatarexpats 18th Jul - 5:44pm
    Michael 1 17th Jul '19 - 9:55pm.............The 50p highest rate of tax was – wait for it – effective for one whole month of Labour’s...
  • User AvatarBernard Aris 18th Jul - 5:40pm
    Aboud British Science, R&D and Innovation being badly hit , structurally starved of new migrant EU scientists, by a "Bad or No Deal Brexit", and...
  • User AvatarRichard Underhill 18th Jul - 5:39pm
    on 17/7/19 Peston's programme on ITV interviewed Boris Johnson, but did not give equal time, or indeed any time, to Boris's rival, the Foreign Secretary....
  • User AvatarMichael BG 18th Jul - 3:32pm
    Joseph, I think it very strange that you condemn the Conservative economic policies of 2010 and 2011 which the Coalition implemented and state it delayed...
  • User AvatarBernard Aris 18th Jul - 3:22pm
    About the comments of Dutch Labour (PvdA) EU Commissionner Frans Timmermans in tonight's BBC Panorama about 3 years of Brexit "misadventures": what Timmermans says is...
  • User AvatarMichael BG 18th Jul - 2:45pm
    Peter, I think you are confused. You have often written that it is taxation which gives value to a fiat currency. Pavlina Tcherneva points out...