Last week the Conservative party sent to the press a press release and a proposals paper on their envisaged “Bill of Rights” which is to replace the Human Rights Act 1998.
But the curious thing is that the Conservatives did not publish the press release or policy paper. It seems that they sent their proposals, which would affect the fundamental rights of all citizens, to their contacts in the press. Left to the Conservatives, the proposals were not to be published so that that public could read them unless a media outlet chose to publish the proposals.
What the Conservatives should have done, of course, is publish the proposals on their website, for consultation or comment. After all, these are important proposals about a serious matter.
But, no. The details of the proposals were for the Press only. If the Press published the proposals paper then that was up to them.
And five days later, the Conservatives have still not published their proposals.
One can understand why the Conservatives would now not want to publish their legally illiterate, widely derided proposals; but they did not not know what the response would be at the time the proposals were announced and shared with the Press.
What this omission indicates is something different from simple embarrassment.
What this shows is that the Conservatives only see this as a media exercise, so as to generate politically advantageous coverage.
The Conservatives do not really want to know what you think about abolishing the Human Right Act and they do not want you to have access to their plans, independent of any media outlet; the Conservatives instead care more about what the Press thinks and what the Press will tell you to think.
In essence, it tells you everything about the Conservatives’ contempt for citizens that their “Bill of Rights” proposals were intended only for the Press, and not for citizens to be able to see for themselves.
Just after I published this post, this happened – the Tories inserted a link on their website and dishonestly made out it had been there all along.
A common assertion – almost a slogan – in discussions about rights is that there should be “no rights without responsibilities”.
It has a superficial attraction as a proposition; but to those who say this I have one question:
What responsibilities must we fulfil in return for our right not to be tortured?
To those who parrot "no rights without responsibilities" I ask simply: What duties must I fulfill in return for my right not to be tortured?
— Jack of Kent (@JackofKent) October 4, 2014
This will be an updated round-up of useful links on the Tory proposals for a “Bill of Rights” to replace the Human Rights Act 1998 (the “Act”). The Act gives effect in UK law to the European Convention on Human Rights (“ECHR”).
New additions are marked [ADD....].
Council of Europe statement on the proposals.
There has so far been no detailed legal commentary in support of the proposals.
There are so far few “non-legal” defences of the proposals with any substance – most repeat the Conservative Party’s press release.
Conservative MEP and journalist Dan Hannan’s post is the best defence so far.
[ADD - this is an engaging argument in favour of the principle of a domestic Bill of Rights by Guglielmo Verdirame at the Spectator.]
A legal opinion by two QCs – “In our view those proposals are wholly unworkable, legally contradictory and inherently inconsistent.”
Carl Gardner’s (1) annotations to the policy paper and (2) his detailed critique – “…the noise and drama of the policy isn’t backed up by its substance. If the acid test is whether the plan would prevent another Abu Qatada or prison votes row – then it fails”.
Analysis by Dr Mark Elliott of Cambridge University - “the present proposals…fail adequately to engage with fundamental aspects of our present constitutional architecture and are built upon a misleading analysis of the legal context”.
Angela Patrick at the UK Human Rights Blog: Incoherent, incomplete and disrespectful: The Conservative plans for human rights – “The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law.”
Critique by Isabella Sankey of the campaigning group Liberty – “The proposals are legally illiterate, politically provocative and designed to put us on a collision course with the Court of Human Rights”.
Guardian report on the reaction to the proposals, including quotations containing the severe criticism from Tory QCs Kenneth Clarke (Chris Grayling’s predecessor as Lord Chancellor) and Dominic Grieve (former Attorney-General).
Nick Cohen at the Observer on the confused politics behind the proposals.
Peter Oborne at the Telegraph – Conservatives should think very carefully before ditching the ECHR – “This is potentially a wretched moment in the history not just of the Conservative Party but also of Britain”.
[ADD: from 2009, this by Jesse Norman (now a Conservative MP) and Peter Oborne is magnificent: Churchill's Legacy - the Conservative case for the Human Rights Act.]
Jessica Elgot at the Huffington Post – 10 Holes And Howlers In The New Tory Plans For Human Rights Law
Excellent Daily Mirror article with practical examples of what the Act “has done for us”.
Joshua Rozenberg at the Guardian – “Tory plans for European human rights convention will take UK back 50 years”
Guardian editorial - “a confused and dangerous jumble of political prejudice and legislative foolishness”.
Jonathan Freedland at the Guardian – “Scrapping human rights law is an act of displaced fury”.
[ADD - a good survey article at the Legal Gap by Oliver Carter.]
[ADD - a family solicitor's view, by David Burrows.]
This will be announced tomorrow. The text below was provided to me in circumstances where I was not bound by the “embargo”. It is in the public interest for this to be published as soon as possible and for these proposals to be subject to open and wide discussion, including expert analysis. I apologise to any journalists whose copy was adversely affected by my disclosure; my intention was not to “scoop” any rival. For completeness, I derive no commercial or financial benefit from this blog (there are not even adverts!).
European Court of Human Rights will lose its power to order change in Britain.
A majority Conservative Government will scrap Labour’s Human Rights Act, and will end the ability of the European Court of Human Rights to order changes to British laws. Today the Conservatives are publishing a strategy paper which sets out how that will be achieved.
At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation. It will make it clear that people have clear responsibilities to society, and that there is a proper balance between rights and responsibilities in British law.
The Bill will remain faithful to the basic principles of human rights which the United Kingdom signed up to in the original European Human Rights Convention, but it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole.
The new measure will:
- Repeal Labour’s 1998 Human Rights Act.
- Break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. This will make our Supreme Court the ultimate arbiter of human rights matters in the UK.
- End the ability of the European Court to require the UK to change British laws. Every judgement against the UK will be treated as advisory and will have to be approved by Parliament if it is to lead to a change in our laws.
- Define much more clearly when and how Human Rights laws in the UK are to be applied. This will end the ability of the Courts to decide unilaterally to apply Human Rights laws to whole new areas of public life.
- Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases.
- Balance rights and responsibilities. People who do not fulfil their responsibilities in society should not be able to claim so-called “qualified rights” in their defence in a court of law.
- Ensure that those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims to prevent their deportation.
The plan provides a proper balance between the rights of citizens and their responsibilities in our society, and in particular to limit the ability of those who threaten British citizens or society to use human rights laws to protect their interests at the expense of the victims or potential victims.
It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society.
Examples of how the new law will be different include:
- Terrorists and serious criminals who pose a significant threat to the security and safety of UK citizens would lose their right to stay here under Human Rights Laws.
- People who commit serious crimes in the UK, and in doing so infringe upon the basic rights of others, should lose their right to claim the right to stay here under the right to family life. So for example, a foreign criminal, guilty of causing death by dangerous driving and so taking away the rights of another citizen, would not be able to claim family rights to stay in the UK.
- No one would be able to claim human rights to allow them to step outside the law that applies to all other citizens, for example a group of travellers claiming the right to family life to breach planning laws.
- The right to family life would be much more limited in scope. For example an illegal immigrant would not be able to claim the right to family life to stay in the UK because he had fathered children here when he is playing no active part in the upbringing of those children.
- Limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.
The move follows widespread debate about the role of the European Court of Human Rights in UK matters and whether it has the right to overrule Parliament. Earlier this week the former Lord Chief Justice Lord Judge warned that “it would be a negation of the democratic process for Members of Parliament to be obliged to vote for a measure with which they disagree” if ordered to do so by Strasbourg. He also states “ultimate sovereignty does not rest with the courts, but with Parliament. What is more, in our arrangements, although Parliament is expected to respect a Treaty obligation, it is not bound to do so”.
Elsewhere in his article he says: “In my view in any country which embraces the principle of democracy, and certainly in the United Kingdom, ultimate authority over constitutional and societal questions is not vested in a body of judges, however wise and distinguished, and even if the system for their appointment is beyond criticism.” His move followed an assertion by the President of the Court that they had the right to overrule MPs.
The strategy paper and draft Bill have been drawn up by leading Conservative QCs following a series of extensive discussions with lawyers, academics and Parliamentarians.
Justice Secretary Chris Grayling said:
“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 and not by our Parliament and our own courts. We also have to be much clearer about when human rights laws should be used, and that rights have to be balanced with responsibilities. People in this country are fed up with human rights being used as an excuse for unacceptable behaviour.
“We will always stand against real human rights abuses, and political persecution. But these plans will make sure that we put Britain first and restore common sense to human rights in this country.”
The Rt Hon Lord Howard of Lympne, CH, QC said:
“The argument is not about human rights, to which we all subscribe. No, the argument today is whether arrangements such as the European Court of Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have operated, bring the concept into disrepute.
“Certainly, the way in which the Convention on Human Rights has been interpreted is far removed from its founders’ intentions.
“We are simply restoring parliamentary sovereignty, and some much needed common sense, to our human rights laws.”
Today, at the Conservative Party Conference, the Home Secretary and the Justice Secretary are scheduled to speak. This means that it is likely that, yet again, human rights law will be attacked.
So as to help assess the soundness of these attacks, you may find the following points helpful.
First, many of the alarmist examples of human rights abuses turn out to be, well, false. For example, in 2011 the Home Secretary stood up at Tory Conference and said:
The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.”
But she had made it up.
As recently as this week, a newspaper has had to correct another shock human rights claim.
So to begin with, just be careful: what you are told by politicians and the media about human rights cases may turn out to be factually incorrect. Don’t just nod-along in horror.
Second, the attacks on the Human Rights Act and the European Convention of Human Rights (ECHR) invariably tend to be vague.
As a general rule, the more hostile a person is to the Act and the ECHR, the less they tend to know what the Act and the ECHR actually contain. This is because both the Act and the ECHR have become nothing more than bogey-men to many politicians and pundits.
A better approach is to read this magnificent speech by the late Lord Bingham – and ask yourself his key questions:
Which of these rights, I ask, would we wish to discard?
Are any of them trivial, superfluous, unnecessary?
Indeed, as has been observed before, one of the shortest conversation one can have in politics is to ask an opponent of the Act and the ECHR exactly which provisions they oppose. (The best answer, if any, one will get is “all of it” – which usually means the person has not read any of it.)
The Act itself is short and readable. Take a few moments to read it, and ask yourself what parts of it seem wrong to you.
And look carefully at which parts of the Act its opponents specifically attack.
You will see that the Act’s opponents avoid engaging on any level of detail.
Third, and this is a point about the current obsession of Tory ministers with attacking human rights law, there is actually nothing “un-Tory” about the ECHR.
The ECHR was co-written by the Tory politicians of the time, notably Maxwell-Fyfe. One of its great supporters was Winston Churchill himself, who spoke in favour in his 1948 speech at The Hague of
the idea of a Charter of Human Rights, guarded by freedom and sustained by law.
Even wise Tories of today are in favour of the ECHR, for example see this by Jesse Norman MP and Peter Oborne, and see also the recent comments by former Attorney-General Dominic Grieve.
One can only hope that as anti-ECHR MPs defect to UKIP, the Tories will revert to their un-ideological approach to policy which made the ECHR possible in the first place.
(In the longer term, perhaps, hostility to human rights law may turn out to be a bug in, and not a feature of, modern Toryism.)
Fourth, it is important to note that the whole purpose of human rights law is, from time to time, to frustrate governments and others with power.
Human rights law which allows politicians to do what they would have done anyway is not meaningfully human rights law at all.
Of course, government do not like human rights law – they also dislike legal aid and judicial review – as it empowers the individual to stand up to the State.
So the protests of senior politicians (of all parties) about human rights law should never be taken at face value.
Finally, it is a good thing that human rights law is up for debate.
But a good debate needs to be an informed debate. The problem with the current attacks on the Act and the ECHR is that they are ill-informed, and then (sadly) uncritically repeated in parts of the media.
This lack of an informed debate is not inevitable, and it is open for everyone to inform their view and make their own minds up on whether today’s attacks on the Act and the ECHR add up, and whether the Home Secretary and the Justice Secretary answer Lord Bingham’s crucial questions.
In particular, which of the rights do we want to discard?
Magna Carta is, we are told, “important”. It is “fundamental”. It is sometimes even “important and fundamental”.
Is it? And if so, how?
With the 800th anniversary coming up next year of the sealing of the original document (though what we commonly call Magna Carta is actually from 1297 and not 1215), it seems as good a time as any to set a challenge. So here it is:
When was the last legal case, if any, that was determined by the fair trial right set out at Article 29 of Magna Carta?
Put differently: when was the most recent English legal case (either at first instance or on appeal) where the “ratio” was Article 29 of Magna Carta? That the outcome of the case would have been different but for the application of Article 29 of Magna Carta?
Article 29 provides:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
There will be those who say this is “to miss the point”. I call them “Magna Carta symbolists” (as “Magna Carta sentimentalist” would be perhaps pejorative). For the Magna Carta symbolist, it does not matter that few if any have ever relied on the fair trial right set out at Article 29, it is still symbolic all the same.
Against this view there are (I think) two points.
First, when a symbol has no substance, then it can be easily contested – even contradicted.
For example: even though politicians and judges often cite Magna Carta as the “cornerstone” or “foundation stone” of liberty, no voter or litigant ever gets to rely on this supposed right. In this way, Magna Carta is just as “symbolic” of the lack of enforceable rights than the basis of such rights, if not more so.
Second, it is a sorry set of affairs when the supposed foundation of one’s liberties is of no practical use. Yes, symbols can be important – and, following Bagehot, some parts of the constitution are perhaps more dignified than efficient – but that surely should not be the case with the right to a fair trial. A US citizen is not content to merely adore the Bill of Rights; he or she can got to a court and insist on his or her rights being recognised.
In fact, we are so used to being told that Magna Carta is “important” and “fundamental” that we have not noticed that what we are nodding along with is not worth anything at all. But because we think it is s “important” and “fundamental” we shrug at the prospect of having enforceable rights.
As it stands, there is nothing whatsoever stopping Parliament from legislating in breach of Magna Carta, and while judges garnish their judgments and speeches with references to Magna Carta, they will always either groan at or mock any party to a case that dares to rely on it in court.
So as a “Magna Carta empiricist” (or “realist”), this blog poses the challenge: what has Article 29 of Magna Carta ever done for us?
My FT post on the myth of Magna Carta (free to access but registration required).
(The above challenge is in respect of English law (which also normally applies to Wales); but the challenge is also posed for any jurisdiction where Magna Carta forms (or has formed) part of the law. I am not qualified in Scots or Northern Irish law, and so do not know whether Magna Carta forms part of those legal systems. Similarly, I am not able to say if it forms the law of the United States, the rest of the former British Empire/Commonwealth, any other common law jurisdiction, or even that of Jersey, Guernsey, or the Isle of Man. But if Magna Carta is somehow part of the law in any jurisdiction, I would be delighted to hear if it has ever been relied on in an actual case.)
Please use a name when commenting so to make it easy for other commenters to refer to your comment; no purely anonymous comments will be published.
In an office, somewhere in London.
Nephew: Happy Magna Carta Day, uncle!
Nephew: Magna Carta Day a humbug?
Scrooge: If I could work my will, every idiot who goes about with ‘Magna Carta Day’ on his lips, should be boiled with his own pudding, and buried with a rolled medieval manuscript through his heart.
Scrooge: Why do you celebrate Magna Carta?
Nephew: It is the basis of our right to a fair trial, uncle. Everyone knows that. Even you.
Scrooge: Has this Magna Carta “right to a fair trial” ever been successfully relied on by any litigant in an English case, eh? Has it?
Nephew: That’s not the point.
Scrooge: Hardly the basis of the “right to a fair trial” then , is it? Look at the courtrooms and the prisons: has any defendant ever been helped by this so-called right in Magna Carta? Has any case ever turned on it? Eh, Sir?
Nephew: Uncle, that is not the point! Magna Carta is of fundamental importance.
Nephew: It symbolises…
Nephew: …it symbolises…the symbolism of our liberties.
Scrooge: So it makes no practical difference.
Nephew: The Prime Minister is for it.
Scrooge: Does that not strike you as odd? What sort of symbol of our liberties is it that is praised by the head of the government? The whole point of a symbol of our liberties would be that a Prime Minister should not like it!
Nephew: Uncle, you are being contrarian!
Scrooge: No Sir, I am just being clear instead of muddled. I ask another question of you: does Magna Carta stop parliament? Can the Commons still legislate as they will?
Nephew: Yes, Sir, I am sad to say so.
Scrooge: Oh! I was afraid, from what you said, that something had occurred to stop it.
Nephew: That is not how Magna Carta works!
Scrooge: Magna Carta does not work at all! Nobody is the better for it. It assists neither the prisoner nor the appellant. It is flapdoodle, claptrap, balderdash. It may as well never been passed at all for all the difference it has ever made.
Nephew: But is still a symbol!
Scrooge: Yes. But it is a symbol of how easily people are taken in. It is a symbol of the fact we pretend there is any constitutional block on parliament and judges to exactly what they want anyway. Good day, Sir.
Scrooge: Good day.
With an apology to Dickens.
[For a more serious version of the above, see my post at the Financial Times (free to access, registration required).]
The appointment of Mr Steve Coogan as a patron of Index on Censorship seems to me to be an odd one.
But Index and Hacked Off have contrasting views on the issue of press regulation.
There is a lot of concern at the apparent tension in this. Is this concern warranted?
So I asked questions of both Hacked Off and Index.
Below are their responses.
[Add: statement from Mr Coogan has been added at foot of this post.]
From Hacked Off:
“We understand Steve Coogan agreed to be patron of Index on Censorship after an approach from the organisation, having debated the merits of Leveson on a platform at a legal conference on 20th May.
“He did not consult Hacked Off before agreeing their request and nor would we expect him to.
“We strongly support his decision to be a patron of Index because, on matters other than Leveson, Index does excellent work which we support. For example, leading members and supporters of Hacked Off are involved in the Libel Reform Campaign with Index. Several other Index patrons are supporters of Leveson.”
In response to my questions:
1. A list of all times Mr Coogan has spoken on behalf of Hacked Off.
2. What he has said on those occasions.
3. A list of any public statements Hacked Off has made about Index (and its opposition to press regulation).
“We don’t keep these records – although you can search for published examples online.”
4. The extent of Mr Coogan’s financial support for Hacked Off (including but not limited to http://hackinginquiry.org/mediareleases/steve-coogans-rash-cash-pledge/)
“Steve Coogan matched cash donations from the public during a fundraising campaign last year, accompanied by a subsequent plea from Alan Partridge not to be duped by this request for a matching cash pledge.”
[Added when I asked for more detail]“We think the public generously contributed about £20,000 and Steve has generously matched that. The full sum is not yet totalled but will be reported in due course.”
5. The other ways Mr Coogan has supported Hacked Off.
“Steve Coogan’s support included appearances on platforms with Hacked Off, written press articles and a reception at the Labour Party Conference last year. He set out much of this in an interview for Total Politics on 26th March.
“He also provides support and encouragement to many of the victims of press abuse who are not otherwise in the public eye. As well as writing, broadcasting and acting, his time has been taken up on the Philomena campaign and on a campaign to help prevent FGM. We are very grateful for his time and energy.”
In response to my questions:
1. Why has Mr Coogan appointed as a patron?
“Index on Censorship is actively seeking new patrons from a variety of artistic spheres, known both in the UK and abroad. We are also looking for new patrons outside of the UK.
“Steve Coogan is a high profile writer and comedian who has spoken out openly on free expression and we believe he will be a strong supporter of work defending artistic freedom globally.”
2. When was the last patron appointed before Mr Coogan?
“I [Jodie Ginsberg, the CEO] don’t have a record on this but one has not been appointed for several years as far as I’m aware.”
3. Is there any formal procedure for appointing a patron?
4. Who approached whom about Mr Coogan being a patron?
5. When was this approach?
“I first spoke to Mr Coogan in early May and approached him formally this week.”
6. Who made the decision to appoint Mr Coogan as patron?
“The management team in discussion with the chair and trustees.”
7. Who was consulted re this decision?
“Staff and trustees.”
8. Who approved this decision?
“The chair and CEO”
9. Did anyone oppose this decision?
10. What account was made of Mr Coogan’s position as a spokesperson and key funder of Hacked Off?
“We recognised that Mr Coogan had taken an opposing position to us on the Royal Charter, as had other patrons.”
11. Has Mr Coogan made a donation to Index? Will he? Details please.
“Mr Coogan has made no donation to Index. I have no idea if he will make a donation.”
12. Is there any donation to Index connected with Mr Coogan’s appointment?
13. When did the appointment take effect?
14. Is there any limit to the support a person could give to the regulation of the press in any country before they became ineligible to be a patron of Index? If so, what is that limit?
“Yes – we would not appoint anyone as patron who did not agree with Article 10 of the European Convention on Human Rights.”
ADDED – From Steve Coogan:
This statement was emailed to me.
Somethings are not new.
The influence of religion in Birmingham state schools is one of the big political issue of today.
And one of the biggest political controversies in late 1860s and early 1870s was, well, also about secular education in Birmingham schools. Indeed, the young Joseph Chamberlain launched his political career by exploiting the disquiet at the role of religion in Birmingham schools. His novel methods of political organisation – in some ways, the start of modern party political campaigning – were also developed in the local School Board elections which followed the 1870 Education Act.
So there is nothing new at politicians exploiting issues like this either…
(I knew my aborted Modern History BA dissertation on religion and politics of the Birmingham secular school problem in 1860s would one day be relevant-ish!)