I don’t like being told what to do. It’s a failing I’ve had since childhood. As a result, at heart, I’m a Tory. Because if I don’t like being told what to do by other people, I loathe being told what to do by the State.
Since I don’t like being told what to do by the State, many people assume that I would, like far too many Tories in my experience, dislike the Human Rights Act 1998 (HRA), or its precursor, the European Convention on Human Rights & Fundamental Freedoms (to give it its full name).
But it is precisely that loathing of being told what to do, that means I am an advocate for the HRA, and the British-inspired Convention. It is my respect for the rule of law, which I felt all my life but only came to understand while studying law, that leads me to be grateful for a framework of rules that isn’t about what you can’t do, but what the State cannot do to you.
It often surprises people when you tell them that the Convention was inspired by the British. In fact, it was more than that; it was almost entirely written by a Conservative lawyer, Sir David Maxwell-Fyfe, who was both Home Secretary and Lord High Chancellor of Great Britain in his time. Maxwell-Fyfe, who became Lord Kilmuir in 1954, was a prosecutor at Nuremburg, so he had witnessed first-hand the vile excesses of a State where the rule of law had been warped by evil.
It saddens me that Conservatives have taken against the Human Rights Act. You would think, by looking at the way the HRA is derided by some Tories, from our new Prime Minister down, that it was some monstrous foreign construct imposed on them from above. Many probably think it is – there are Tories who believe anything with the phrase European in it is related to the EU. But it is especially sad when you consider that it was a Tory MP, Sir Edward Gardner QC, who first introduced a Private Members Bill to incorporate the Convention rights into English law. Indeed, before that Mrs Thatcher had promoted amendments to the Scotland Bill in 1977 which would have incorporated the Convention rights into UK law.
It took a Labour Government to introduce the Human Rights Act. Tory support was far om absent when the HRA was debated at second reading, in February 1998. But concerns about sovereignty, hopefully addressed by the sight of the Act in practice, led the Tory opposition to vote against it. In my view that was a mistake, and one that presaged a worrying move towards outright opposition, not just to the Human Rights Act, but also to the principles espoused in the Convention.
The rights protected in the Convention are misnamed “European” rights. They are no more European than any rights protected by a putative ‘British’ Bill of Rights would be British. The rights protected by the Convention are universal, though their recognition by States is patchier.
Everyone deserves the right to life, as protected by Article 2. Everyone deserves the right not to be tortured, or subjected to degrading or inhuman treatment or punishment, protected by Article 3. Everyone deserves right not to be enslaved, provided by Article 4. Everyone deserves the right to liberty and security of the person, protected by Article 5. Everyone deserves the right to a fair trial, provided by Article 6. Everyone deserves the right not to be retrospectively penalised, provided in Article 7. Everyone deserves the right for their private family life to be respected, and that’s protected by Article 8. Everyone deserves the right of freedom of conscience, religion and thought, and so says Article 9. Everyone deserves freedom of expression, which is protected in Article 10. Everyone deserves the right to assemble and associate, protected by Article 11. Everyone deserves the right to marry, provided by Article 12. Everyone deserves the right not to be discriminated against in the enjoyment of these rights, under Article 14. And under Protocol 1, everyone deserves the right not to have our property taken away except in the public interest and with compensation (Article 1, Protocol 1). Everyone deserves the right of fair access to education (Article 2, Protocol 1). Everyone deserves the right to free and fair elections (Article 3, Protocol 1).
It is in the balancing of these rights that the most contentious and controversial cases come forward. Those that get the most publicity involve the right for a private family life, competing with the right to freedom of expression. Newspaper editors were concerned about the law being used to create a “right of privacy” law before the HRA was introduced; despite reassuring words from the then Home Secretary, Jack Straw QC, just such a right has effectively been crafted by the judiciary. Rather controversially, Lord Falconer, the former Lord Chancellor, suggested that Parliament was cogniscient of the precedents when they passed the HRA, and therefore that Parliament had intended a right of privacy to grow up. Indeed, Parliament was pretty clear during the debate on second reading that it did not wish such a right to be provided without Primary Legislation.
It is true that most of the rights protected by the Convention were already rights in this country before 1951. The Convention, and by extension the HRA, doesn’t give us many new rights.
Without the HRA, the State couldn’t simply take my life. It couldn’t torture me, or subject me to inhumane or degrading punishment. It couldn’t sell me into slavery. These things are already illegal. But I can think of real world examples where these things still happen; police shootings of unarmed suspects, a bullying culture in an army barracks, trafficked people working slavery hours in factories right here in Suffolk.
But there is a huge difference between the theoretical provision of those rights, and their enforcement. All the HRA does is to incorporate the Convention into British law. Its effect is to allow British judges, rather than “foreign” judges, to determine cases in the British courts. Frankly, I’ve never been certain what anyone’s objection to that could be.
We know from history what happens when the State doesn’t respect the rights of its citizens. In Nazi Germany, those who the State had decided were to be discriminated against saw their property rights infringed, their freedom of expression curtailed, and finally their rights not to be enslaved, not to be subject to torture, inhumane or degrading punishments, and their right to life, all extinguished.
It is not just the far Right that has a history of infringing the rights of others. The biggest mass murderer of 20th Century Europe was from the far Left – Josef Stalin. In Stalin’s Soviet Union your rights could be extinguished by the whim of a State that didn’t recognise the rule of law. Undesirable people were sent to Siberia, or Lubyanka, or simply disappeared. The Socialist Republic forced the collectivisation of farms and assumed control over the industrial output. In my view those acts were simple theft, and crucially they would be illegal under the Human Rights Act; the British State couldn’t simply assume control of private businesses, or force landowners to hand over their land, at least without good reason and without compensation. It is these protections that prevent us from becoming enslaved by our Governments.
People argue that such extremes couldn’t happen here, an argument that is rather offensive to the people of Germany or Russia, since it implies that their culture is more susceptible to extremism than ours. It is precisely because they could happen here that we need to be constantly vigilant in protecting our rights, and the rights of others.
The hardest charge for an advocate of the HRA to defend is when it is used by those society shuns. Yet this is precisely what it is for. The only way I know my rights are defended is by defending the rights of others.
Defending the rights of terrorists, of murderers, of criminals, that is how I know that the rights of everyone else are protected.
There are those who say that a terrorist, or a murderer, has voluntarily surrendered their rights by their failure to abide by societies rules. Or that the rights of law abiding citizens should be put before the rights of criminals. Where, these people ask, are the victims’ rights considered?
This seriously misunderstands the point of human rights. Firstly, rights are universal. They belong to everyone – criminal and victim alike. Second, they belong to individuals, not to collectives. They exist to prevent the extremes of a State, not to prevent the extremes of individuals. There are other laws for that.
The way we set our society apart from that which the terrorists wish us to be is by recognising and protecting their rights. The people best at this are the Scandinavians. Anders Breivik received a painfully fair trial, despite murdering dozens of children five years ago. When two six-year-old boys killed a playmate in Trondheim back in 1994, those children were never named, unlike the two children who killed James Bulger the same year. The law recognised that there was little to be gained from naming children, and so their rights were protected.
Sadly, the UK isn’t perfect when it comes to respecting the rights of those who society shuns, or who shun society. The UK State has taken upon itself the right to kill British citizens without trial, outside of a war, if they are suspected of terrorism. Even where British lives are not in immediate danger. The incoming Prime Minister, Theresa May, has intimated that the UK State will not guarantee the rights of EU citizens living in this country, suggesting that their rights will be a part of the Brexit negotiations.
A few years ago the care on elderly wards at Ipswich Hospital was so bad it was described as criminal. Had that situation not been dealt with, there would have been a good argument to be made for a case under Article 3, the right against torture, degrading treatment or inhumane punishment.
I’ve had personal experience of having to enforce my Human Rights as well. I have seen friends of mine discriminated against by police officers because of the colour of their skin. I have had the State attempt to restrict my freedom of religion. So for me the Human Rights cause is both morally right, and personally vital.
Such abuses are thankfully rare in the UK. Sadly, the capacity for abuses remains; the huge increase in racist attacks after the EU referendum shows just how fragile the society we take for granted could be.
So what do Human Rights mean to me? They’re the basis for our whole society; the framework by which we ensure our freedom. They’re vital, and no matter what they are called, they must not be weakened or infringed.