The very same week in which David Cameron has been confirmed to a second term as Prime Minister offering stability, with Parliament barely having had the chance to reassemble, the new Conservative government has already lit the fires of controversy. Cameron has promised a unified Britain, yet one of his first announcements is the intention to scrap the Human Rights Act 1998 (Watt, 2015), which is likely to be the first of several big and divisive threats to the Union during this Parliament.
The Human Rights Act is woven deeply into the British social fabric. The Welsh Labour government is resistant to changes, SNP-led Scotland already has one foot out of the door and even the Good Friday Agreement for peace in Northern Ireland would have to be tampered with (McDonald, 2015) - and all of the devolved institutions possess the power to deny consent to alter this matter within their jurisdictions (Brooks, 2015; Scott, 2015).
Tensions are already high between Westminster and Scotland over the UK's continued membership of the EU - with Scottish First Minister Nicola Sturgeon demanding that a majority be secured in each of the UK's nations for secession from the EU to go ahead (Sturgeon, 2015), and Wales is divided on the issue (ITV, 2013). This attempt to undermine British commitment to Human Rights is only going to ensure that the fault lines are riven deep between the nations of the UK, almost entirely by the hands of the Westminster Conservatives.
Under the stewardship of Justice Minister Michael Gove, formerly in charge of much criticised education reform (Garner, 2013), the Conservative plan is to end the influence of the European Court of Human Rights (ECHR) over the UK Supreme Court - although it would leave in place the right of British citizens to appeal to the ECHR themselves (Watt, 2015{2}).
But the Human Rights Act is so much more. It allows British citizens to contest abuses of their European human rights in British courts and requires public institutions to abide by those rights (Stone, 2015). Those rights, contained within the European Convention on Human Rights - in the drafting of which Britain played a large part - protect things like the right to life, privacy and a fair trial; the freedom from torture, servitude or slavery; and the freedoms of conscience, expression and association.
While the UK has largely kept pace with the rights contained within the Convention, its removal takes away certain fundamental guarantees. A particularly important guarantee that will be to remove executive action from accountability to citizen's human rights (Starmer, 2015).
The Convention, and the Human Rights Act, are also nothing to do with the EU. They were implemented rather by the regional international organisation the Council of Europe and is enforced by the European Court of Human Rights - to which 47 states are signed up as members, a much wider membership that the EU, which include Russia, Turkey, Ukraine, Norway, Switzerland and others, all in addition to the 28 members states of the EU.
As much as it is guarantee of the human rights of British citizens, the Human Rights Act 1998 is also an international commitment to upholding the principle of human rights, which requires signatory states and their lawmakers to avoid infringing, or treating arbitrarily, the rights of its citizens contained within the ECHR.
When the convention was signed up to by Churchill, all of the rights were covered by the UK's laws already (Johnston, 2015). But over time they have been applied in ways, and legal challenges have been made through the European Court, that have led to new rulings that have proved a difficulty for the UK - legal representation of migrants, arbitrary removal of the voting rights of prisoners (Ziegler, 2012).
There have been claims this means Europe is making laws for Britain, but this is simply an evolving legal system, responding to a changing environment, in the same way as the British system has evolved. But it also stands as a safeguard, aimed at ensuring that people all across Europe have access to same basic rights, and have a place where they can appeal against arbitrary treatment at the hands of their government. With regards to the prisoner voting 'scandal', Aidan O'Neill QC (2011) said that:
'What is important... is the example one gives. One of the big issues facing the European Court of Human Rights is teaching newly democratic States about democracy. One of its biggest client cases is Russia. Another one in terms of democracy is Turkey. It is a problem with the Council of Europe mechanisms that some States simply do not fix their systems as they should do and it would be a great pity if a long-established State — the United Kingdom, which was there at the founding and there at the drafting — were to set an example to other States in the Council of Europe that they do not have to abide by the law. This is where politics and international relations come in. It is incredibly important that the rule of law be respected at an international level because if we have law/law then we do not have war/war.'
There are concerns, even amongst some potential Conservative rebels, such Kenneth Clarke and the former attorney general Dominic Grieve who disagree with the move (Watt, 2015{2}), that repealing and replacing the act constitutes a step towards rejecting government under the rule of law.
Concerns have risen again about the kinds of laws the UK government is seeking to pass to which European human rights challenges would have posed a strident difficulty. Amongst them, the Snooper's charter remains the one to provoke the most controversy (Carr, 2015). The so called 'communications data bill - for which previous attempts to pass such a bill had been blocked by the Liberal Democrats (Rawlinson, 2015) - forms part of the scramble by Conservatives to give security services more access to our personal data as a way to see attacks before they can happen (Johnston, 2015), to which Boris Johnson said that:
'I'm not particularly interested in all this civil liberties stuff when it comes to these people's emails and mobile phone conversations. If they're a threat to our society then I want them properly listened to.'
These attempts have been criticised for attempting to take away important liberties for very little gain in terms of safety. One particular observation being that regular investigative methods have proven far more effective, based on specific, targeted and legally accountable procedures (Carr, 2015).
The SNP is already looking to rally Conservative backbench rebels against the party's aim to scrap the Human Rights Act (Brooks, 2015). With the devolution legislation, that brought into being both the Scottish Parliament and the Welsh Assembly, there comes the demand of compliance with the Convention and the 1998 Act by the decision-makers of those jurisdictions.
It is possible and likely that Holyrood will refuse to give consent to Westminster, and the Welsh Labour government has derided the attempted repeal as making Britain 'look like a Banana republic' (BBC, 2015). Even the Good Friday Agreement, essentially an International Treaty - that made it possible, in partnership with the Irish Republic, to establish a peaceful Northern Ireland - guarantees that the European Convention on Human Rights is completely incorporated into the law of Northern Ireland (McDonald, 2015).
Recently, these rights have become a political football, bound up with sovereigntist, anti-foreign narratives that have gained traction in the UK. But underneath that is a struggle between competing visions of conservative and liberal societies.
Human rights are, by their nature, fundamentally liberal. They are the defences of the individual against the many, or against the abuses of the state. They represent a guarantee, whatever the circumstances, that people are always afforded an essential respect. In that sense, they undermine many of the institutions and social orders inherent to old conservatism, from churches to the state, where a premium is placed upon hierarchy and adherence. Over the years, the more modern versions of conservatism has taken on elements of these liberal values - but only so long as those liberal values remained 'safely' contained within conservative frameworks and limits (Willetts, 2013).
By standing outside of the British state - outside of any state - the rule of human rights law instead forces conservatism to work within a liberal framework. That is what keeps the rights of individuals safe from arbitrary treatment at the hands of ideologically motivated political decisions, and ensures that we can get justice when those rights are infringed. Trying to undo that framework would represent a step backwards, favouring the power of the state over the individual.
References
Nicholas Watt's 'Conservatives to push forward on manifesto and scrap Human Rights Act'; in The Guardian; 10 May 2015.
Henry McDonald's 'Scrapping Human Rights Act 'would breach Good Friday agreement''; in The Guardian; 12 May 2015.
Libby Brooks' 'Scotland 'will not consent' to Tory plans to scrap Human Rights Act'; in The Guardian; 12 May 2015.
Matthew Scott's 'Michael Gove's attempt to repeal the Human Rights Act faces almost insurmountable odds'; in The Telegraph; 11 May 2015.
Nicola Sturgeon's 'We, the Scottish people, cannot now be ignored'; in The Guardian; 9 May 2015.
'Poll says Wales wants Britain to stay in EU'; on ITV; 21 February 2013.
Richard Garner's '100 academics savage Education Secretary Michael Gove for 'conveyor-belt curriculum' for schools'; in The Independent; 19 March 2013.
Nicholas Watt's 'Michael Gove to proceed with Tories' plans to scrap human rights act'; in The Guardian; 10 May 2015{2}.
Jon Stone's 'Human Rights Act: What is it and why does Michael Gove want to scrap the policy?'; in The Independent; 11 May 2015.
Keir Starmer's 'The arguments against the Human Rights Act are coming. They will be false'; in The Guardian; 13 May 2015.
Connor Johnston's 'In defence of the Human Rights Act - laws must change with society'; on OpenDemocracy; 30 January 2015.
Reuven Ziegler's 'The case for letting prisoners vote'; from 1 Crown Office Row's UK Human Rights Blog; 24 May 2012.
Aidan O'Neill QC in the House of Commons Political and Constitutional Reform Committee, 2011.
Video - 44:21; Tuesday, 10.10am ended at 12.07pm; 1 February 2011.
Written - 'Voting by convicted prisoners: summary of evidence'; February 2011.
'Election 2015: Human Rights Act 'banana republic' warning'; on the BBC; 12 May 2015.
Emma Carr's 'What is the Snoopers' Charter? And 7 reasons why it would be an absolute travesty'; in The Independent; 12 January 2015.
Kevin Rawlinson's 'Lib Dems will block any attempt to revive controversial snooper’s charter'; in The Guardian; 26 January 2015.
Ian Johnston's 'David Cameron pledges new 'snoopers' charter' if he wins general election'; in The Independent; 12 January 2015{2}.
David Willetts, in Phil Maynard and Philip Oltermann's 'Is liberalism dead?'; in The Guardian; 7 June 2013.
No comments:
Post a Comment