Holidays come, yet politics and palace intrigue stand still for no one. On Boxing Day 2011 the news carried yet more reports on the Governments continuing process of clamping down on human rights. In this case as reported by the Times, UK Ministers in conjunction with Switzerland are arguing that the European Court of Human Rights (ECtHR) interferes too much in state policy, and are preparing to lobby the Council of Europe to push for reforms intended to restrict claimants going to Strasbourg. This ties in with recent reports that Justice Secretary Kenneth Clarke wants to create a 'filtering system' to limit claims going to Strasbourg.
Additionally the Guardian has recently reported recently that a commission has been established to examine the possibility of giving contracting states the power to overrule decisions of the ECtHR.
When combined with past rhetoric and proposals to abolish the Human Rights Act 1998 (HRA) in favour of a Bill of Rights it is becoming clearer that the Conservatives in Government have either a complete misunderstanding of the purpose of the European Convention, the HRA and the European Court, or they simply do not enjoy a situation where UK citizens can enforce their rights by law against the State when necessary. Personally where it is inconceivable (but not impossible) that Ministers and Parliament would not understand the purpose of the convention and courts, I am compelled to believe the second possibility, a conclusion strengthened by the fact that historically Conservative Governments, Ministers and Prime Ministers have long lacked enthusiasm regarding Europe, the European Convention and its domestic incorporation. They fought implementation under the premierships of Margaret Thatcher and John Major, and eventually only lost the fight with the loss of their majority to Labour in 1997 which resulted in the enactment of the HRA.
After 1997 prior to and since regaining power in 2010 the Conservatives have however continued to criticise human rights law, arguing for repeal and replacement of the HRA leaving the security of human rights in domestic UK law uncertain, and if we are to protect them then the arguments of conservative politicians and the media must be countered by asking two questions;
1. Is a filtration system necessary? and;
2. Should member states be able to overrule the European Court?
In answering the first question, it can be said that the HRA already acts to filter Strasbourg cases. Originally the HRA was intended to 'bring rights home' through the domestic incorporation of convention rights allowing the British courts to directly interpret and apply those rights in accordance with the intentions of the European convention at inception. Because of domestic incorporation claimants can not simply go directly to the ECtHR as a court of first instance, but must instead, amongst other requirements, exhaust the domestic judicial system first. This renders it technically impossible for human rights claims to go to Strasbourg unless they have been heard and rejected in the Supreme Court, which hears only a very limited number of cases due largely to the logistics and cost involved in doing so.
Additionally regarding cases which reach Strasbourg, the ECtHR applies a margin of appreciation approach, allowing contracting states a measure of discretion by which they can interpret, apply and where necessary infringe qualified convention rights, taking into account the specific values, legal systems, social standards and government policy of each member state. This margin of appreciation allows for the positive acceptance by necessity of state policy in ECtHR judgments when determining whether a member state has or has not infringed a convention right and thereby shows that the ECtHR will not simply drive a horse and cart through domestic policy as a matter of course regardless of how the picture is painted by Government.
Regarding the second question of member state veto over ECtHR decisions, this in itself appears a dangerous proposition given that the whole point of the court is to protect convention rights in the face of state contravention. It is not difficult to imagine member states simply seeking without justification to overrule any if not all unfavourable Strasbourg decisions, thereby undermining and devaluing the purpose of the European Convention and the Strasbourg Court. The idea of state veto is therefore unpalatable at best, particularly considering that there are 47 contracting states of the Council of Europe some of whom already have questionable track records regarding Human rights, and lets not forget that such change would affect all contracting states, not just the UK and our Governments limited appreciation of convention rights.
In my opinion therefore, we cannot uphold a system of human rights that is selective on the basis of whether the individual is a law abiding citizen or whether they are a convicted criminal in prison. Human rights may be distasteful to some given the right circumstances or media coverage, yet they must remain inalienable. They must go beyond criminal or civil right or wrong, and should rightly stand head and shoulders above the power of state and sovereignty against which they are intended when necessary to be invoked by state citizens. It may be easy to argue that individuals who through criminal behaviour would seek to deny the human rights of others should not themselves be able to invoke such rights in their own defence, however by so denying such persons those very same rights, do we not in turn lower ourselves to their level rather than upholding ourselves as the civilised and progressive society we would like to be portrayed as?
I must therefore conclude by stating that any further attempt to clamp down on the invocation of human rights is a filtration too far and is in effect a clampdown on the general public, regardless of how such change is spun by politicians and the media. The justification for the wholesale change envisaged by our current Government does not in my mind go beyond simple political motivation. While some of us may agree with the Government, the vast majority of British citizens have never had and may never need to invoke their convention rights. However those who do will almost certainly regret their passing should the Conservative party in Government succeed in its intentions, by which time such realisation will have come too late. Let us not therefore allow our politicians to lead us blindly to the position that they want us as opposed to the position that we rightly should be.
Mike Farrell, 28/12/2011
This is an edit of a post which appeared on the Authors own site LawBlogOne earlier this week.
Follow Mike Farrell at Twitter
Additionally the Guardian has recently reported recently that a commission has been established to examine the possibility of giving contracting states the power to overrule decisions of the ECtHR.
When combined with past rhetoric and proposals to abolish the Human Rights Act 1998 (HRA) in favour of a Bill of Rights it is becoming clearer that the Conservatives in Government have either a complete misunderstanding of the purpose of the European Convention, the HRA and the European Court, or they simply do not enjoy a situation where UK citizens can enforce their rights by law against the State when necessary. Personally where it is inconceivable (but not impossible) that Ministers and Parliament would not understand the purpose of the convention and courts, I am compelled to believe the second possibility, a conclusion strengthened by the fact that historically Conservative Governments, Ministers and Prime Ministers have long lacked enthusiasm regarding Europe, the European Convention and its domestic incorporation. They fought implementation under the premierships of Margaret Thatcher and John Major, and eventually only lost the fight with the loss of their majority to Labour in 1997 which resulted in the enactment of the HRA.
After 1997 prior to and since regaining power in 2010 the Conservatives have however continued to criticise human rights law, arguing for repeal and replacement of the HRA leaving the security of human rights in domestic UK law uncertain, and if we are to protect them then the arguments of conservative politicians and the media must be countered by asking two questions;
1. Is a filtration system necessary? and;
2. Should member states be able to overrule the European Court?
In answering the first question, it can be said that the HRA already acts to filter Strasbourg cases. Originally the HRA was intended to 'bring rights home' through the domestic incorporation of convention rights allowing the British courts to directly interpret and apply those rights in accordance with the intentions of the European convention at inception. Because of domestic incorporation claimants can not simply go directly to the ECtHR as a court of first instance, but must instead, amongst other requirements, exhaust the domestic judicial system first. This renders it technically impossible for human rights claims to go to Strasbourg unless they have been heard and rejected in the Supreme Court, which hears only a very limited number of cases due largely to the logistics and cost involved in doing so.
Additionally regarding cases which reach Strasbourg, the ECtHR applies a margin of appreciation approach, allowing contracting states a measure of discretion by which they can interpret, apply and where necessary infringe qualified convention rights, taking into account the specific values, legal systems, social standards and government policy of each member state. This margin of appreciation allows for the positive acceptance by necessity of state policy in ECtHR judgments when determining whether a member state has or has not infringed a convention right and thereby shows that the ECtHR will not simply drive a horse and cart through domestic policy as a matter of course regardless of how the picture is painted by Government.
Regarding the second question of member state veto over ECtHR decisions, this in itself appears a dangerous proposition given that the whole point of the court is to protect convention rights in the face of state contravention. It is not difficult to imagine member states simply seeking without justification to overrule any if not all unfavourable Strasbourg decisions, thereby undermining and devaluing the purpose of the European Convention and the Strasbourg Court. The idea of state veto is therefore unpalatable at best, particularly considering that there are 47 contracting states of the Council of Europe some of whom already have questionable track records regarding Human rights, and lets not forget that such change would affect all contracting states, not just the UK and our Governments limited appreciation of convention rights.
In my opinion therefore, we cannot uphold a system of human rights that is selective on the basis of whether the individual is a law abiding citizen or whether they are a convicted criminal in prison. Human rights may be distasteful to some given the right circumstances or media coverage, yet they must remain inalienable. They must go beyond criminal or civil right or wrong, and should rightly stand head and shoulders above the power of state and sovereignty against which they are intended when necessary to be invoked by state citizens. It may be easy to argue that individuals who through criminal behaviour would seek to deny the human rights of others should not themselves be able to invoke such rights in their own defence, however by so denying such persons those very same rights, do we not in turn lower ourselves to their level rather than upholding ourselves as the civilised and progressive society we would like to be portrayed as?
I must therefore conclude by stating that any further attempt to clamp down on the invocation of human rights is a filtration too far and is in effect a clampdown on the general public, regardless of how such change is spun by politicians and the media. The justification for the wholesale change envisaged by our current Government does not in my mind go beyond simple political motivation. While some of us may agree with the Government, the vast majority of British citizens have never had and may never need to invoke their convention rights. However those who do will almost certainly regret their passing should the Conservative party in Government succeed in its intentions, by which time such realisation will have come too late. Let us not therefore allow our politicians to lead us blindly to the position that they want us as opposed to the position that we rightly should be.
Mike Farrell, 28/12/2011
This is an edit of a post which appeared on the Authors own site LawBlogOne earlier this week.
Follow Mike Farrell at Twitter
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