What you need to know about the Human Rights Act and ECHR

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 seethis 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?

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