The politics of regression
The UK has passed a lot of posts over the last five years. We are now a post-European, post-welfare, post-consensus, post-progressive, post-rational, post-democratic, post-first world, post-liberal, post-inclusive, post-diverse, post-equality, post-freedom, post-rights, post-protest, post-truth society. We managed all of this by travelling backwards as a society, not forwards.
The clocks stopped when the Conservatives took office in 2010. Now we are losing a decade a day.
This week, the government have confirmed they still plan to repeal the Human Rights Act and replace it with a so-called British Bill of Rights. This will break the formal link between the European Court of Human Rights and British law. Any judgement from Europe would be treated as ‘advisory’ only, rather than legally binding, and would need to be ‘approved’ by parliament. Such a Bill would definitely short change UK citizens in terms of balancing responsibilities, obligations and rights. It would profoundly disempower citizens because it will shift the balance of democracy, placing power almost entirely in the hands of the state.
The rights of citizens protected by Labour’s flagship Human Rights Act are quite basic. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of speech, thought, religion, conscience and assembly; the right to free elections; the right to fair access to the country’s education system; the right NOT to be given the death penalty; the right to marry and an overarching right not to be discriminated against.
Over their time in office, the Tories have systematically contravened the Human Rights of disabled people, women and children. It’s clear that we have a government that regards the rights of most of the population as a mere bureaucratic inconvenience, to be simply brushed aside. In October 2014, I was one of the very first independent writers to report the United Nations’ inquiry into the government’s gross breaches of the rights of disabled people. Writers and researchers like me and organised groups such as Disabled People Against the Cuts (DPAC) have been submitting evidence regarding the dehumanising impacts of the Conservative welfare ‘reforms’ to the UN since 2012.
Theresa May has previously expressed strong support for controversial constitutional change. She stated in 2014 that she would like to see the UK withdraw from the European Convention on Human Rights, echoing David Cameron.
In a speech earlier this year, she said:
“This is Great Britain, the country of Magna Carta, parliamentary democracy and the fairest courts in the world.
And we can protect human rights ourselves in a way that doesn’t jeopardise national security or bind the hands of parliament.
A true British bill of rights, decided by parliament and amended by parliament, would protect not only the rights set out in the convention, but could include traditional British rights not protected by the European Convention on Human Rights (ECHR) such as the right to trial by jury.”
However, May’s comment about the need for a Bill of rights that doesn’t “bind the hands of parliament” is worrying, since human rights were designed originally to protect citizens from despotic states and authoritarian governments precisely like this one.
Her comment that the ECHR does not provide for the right to trial by jury is also misleading. Article 6 of the European Convention on Human Rights is a provision which protects the right to a fair trial and access to justice. In criminal law cases, and cases to determine civil rights, it protects the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other basic rights for those charged in a criminal case (such as adequate time and facilities to prepare their defence, access to legal representation, the right to examine witnesses against them or have them examined, the right to the free assistance of an interpreter).
The Effective Criminal Defence in Europe report identified that the UK already needs to address issues regarding inadequate disclosure to suspects during investigation stage and that a more effective judicial oversight of bail and arrest are needed. Cuts to legal aid are also problematic in terms of ensuring the right of equal access to justice. Chris Grayling has already tried to take legal aid from the poorest citizens, in a move that is so clearly contrary to the very principle of equality under the law. He turned legal aid into an instrument of discrimination. He has also tried to dismantle another vital legal protection – judicial review – which has been used to stop him abusing political power on several occasions. I don’t think this is a government that has indicated so far that it has the needs and wellbeing of citizens as a main priority.
Liz Truss, the Justice Secretary, dismissed reports that that the government was abandoning the policy, which was included in the Conservative manifesto in 2015, to avoid a conflict with the Scottish government.
She told BBC Radio 4’s Today programme on Monday morning:
“We are committed to that. That is a manifesto commitment.
I’m looking very closely at the details but we have a manifesto commitment to deliver that.”
But last year Amnesty UK commissioned a poll that indicated the British public are not particularly willing to see any change to existing Human Rights legislation, with only one in 10 people in the UK (11%) believing that scrapping the Human Rights Act should be a government priority.
Kate Allen, Amnesty International (UK) director, said:
“The British people clearly want the Government to get on with their proper business of the day-to-day running of the country, and abandon these destructive plans.
It’s quite right that it shouldn’t be up to governments to pick and choose which rights we are entitled to and select who they deem worthy of them. It took ordinary people a very long time to claim these rights and we mustn’t let politicians take them away with the stroke of a pen.
It’s great to have it confirmed that British people think that rights and protections must apply to everyone equally in order to work at all.”
Cameron pledged to explore ways to leave the ECHR in the wake of the departure of his most senior legal advisor, Dominic Grieve.
Ken Clarke said “It is unthinkable for Britain to leave the European Convention on Human Rights”; he was also a departing cabinet minister. Cameron is believed to have wanted rid of the Attorney General Grieve because he was supportive of Britain’s continued ECHR membership.
Labour dubbed the cabinet reshuffle “the massacre of the moderates”, pointing to the departure of pro-Europe and ‘One Nation’ Tories such as David Willetts, Nick Hurd and Oliver Heald.
It’s long been the case that the Tories and the right wing press have deliberately blurred the boundaries between the European Union and the European Council of Human Rights, which are of course completely different organisations. This was a misdirection ploy.
However it is the case that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it. I also think that Conservatives, who regard both institutions as “interfering”, do see the Union and the Council as the same in terms of both being international frameworks requiring the British government to have a degree of democratic accountability at an international level.
In his parting interview, Clarke, who has held office in every Conservative government since 1972 and is also the party’s most prominent Europhile, said the debate was “absurd”:
“I personally think it’s unthinkable we should leave the European Convention on Human Rights; it was drafted by British lawyers after the Second World War in order to protect the values for which we fought the War for.”
He’s right, of course.
The years immediately after WWII marked a turning point in the history of human rights. As the world reeled in horror at the rise of fascism and the Nazi concentration camps, there came an important realisation that although fundamental rights should be respected as a matter of course, without formal protection human rights’ concepts are of little use and consolation to those facing persecution.
So in response to the atrocities committed during the war, the international community sought to define the rights and freedoms necessary to secure the dignity and worth of each individual. In 1948 the newly formed United Nations adopted the Universal Declaration of Human Rights (UDHR), one of the most important agreements in world history.
Shortly afterwards another newly formed international body, the Council of Europe, set about giving effect to the UDHR in a European context. The resulting European Convention on Human Rights was signed in 1950 and ratified by the United Kingdom, one of the first countries to do so, in 1951. At the time there were only ten members of the Council of Europe. Now 47 member countries subscribe to the European Convention, and in 1998 the Human Rights Act was passed by the Labour party in order to “give further effect” to the European Convention in British law.
Previously, along with the Liberal Democrats, Grieve was able to thwart attempts to reform the ECHR, and opposed pulling out altogether. The plan to reform it is being led by the Leader of the House, Grayling, but Grieve has pledged to continue to fight for Britain’s membership from the backbenches. Though Nick Clegg had agreed to a British Bill of Rights, he was strongly opposed to withdrawing from the ECHR.
Grieve understood that ECHR is about the fundamental rights of the citizen and ought to be cherished in the same way as the Magna Carta and Habeas Corpus are. But as we know, this is not a typical view amongst Conservatives, who frequently cite the same examples of ‘foreign criminals’ being allowed to stay in the country as evidence it is ‘not working’.
The prime minister’s spokesman said that the sacking of Grieve had not led to a change in government policy. But he pledged action if the Conservatives are elected next year without the Liberal Democrats: “If you are asking me about party manifestos, the prime minister has previously said that he wants to look at all the ways that we can ensure we are able to deport those who have committed criminal offences.”
Grieve said he would defend human rights legislation from the back benches to “contribute to rationality and discourse”:
“If we send out a sign that human rights don’t matter, that is likely to be picked up in other countries which are also signatory states such as Russia.”
The marked loss of transparency and democratic accountability
In the original Conservative proposals to scrap our existing human rights framework, and replace it with their own, one sentence from the misleadingly titled document “Protecting Human Rights in the UK“ (found on page 6 ) is particularly chilling: “There will be a threshold below which Convention rights will not be engaged.”
Basically this means that human rights will no longer be absolute or universally applied – they will be subject to stipulations and caveats. And discrimination. The government will establish a threshold below which Convention rights will not be engaged, allowing UK courts to strike out what are deemed trivial cases.
The Tories’ motivation for changing our human rights is to allow reinterpretations to work around the new legislation when they deem it necessary. The internationally agreed rights that the Tories have always seen as being open to interpretation will become much more parochial and open to subjective challenge.
Some commentators have said that the Conservatives won’t escape accountability if they repeal the Human Rights Act and replace it with something less comprehensive, because we are still signatories to a number of broader international treaties on human rights.
However, last year I wrote about how the government has quietly edited the ministerial code, which was updated on 15 October 2015 without any announcement at all. The code sets out the standard of conduct expected of ministers. The latest version of the code is missing a key element regarding complicity with international law.
The previous code, issued in 2010, said there was an:
“overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.
The new version of the code has been edited to say only that there is an“overarching duty on ministers to comply with the law and to protect the integrity of public life”.
A Conservative Party policy document had revealed that the ministerial code will be rewritten in the context of the UK withdrawing from the European convention on human rights. In order to help achieve these aims the document says:
“We will amend the ministerial code to remove any ambiguity in the current rules about the duty of ministers to follow the will of Parliament in the UK.”
Yasmine Ahmed, director of Rights Watch, an organisation which works to hold the government to account, said:
“This amendment to the ministerial code is deeply concerning. It shows a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”
Any precedent that allows a government room for manoeuvre around basic and fundamental human rights is incredibly dangerous. Especially such an authoritarian government.
Implications for democracy
Democracy is one of the universal core values and principles of the United Nations. Respect for human rights and fundamental freedoms and the principle of holding periodic and genuine elections by universal suffrage are essential elements of democracy. These values are embodied in the Universal Declaration of Human Rights and further developed in the International Covenant on Civil and Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies.
The Rule of Law and Democracy Unit stands as the Office of the High Commissioner for Human Rights (OHCHR) focal point for democracy activities. The Unit works to develop concepts and operational strategies to enhance democracy and provide guidance and support to democratic institutions through technical cooperation activities and partnership with the relevant parts of the UN, notably the UN Democracy Fund, the Department of Political Affairs and the newly established UN Working Group on Democracy. Legal and expert advice are provided as required to OHCHR field operations on relevant issues such as respect for participatory rights in the context of free and fair elections, draft legislation on national referenda and training activities.
“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
The link is further developed in the Covenant on Civil and Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies. The rights enshrined in the International Covenant on Economic, Social and Cultural Rights and subsequent human rights instruments covering group rights (eg indigenous peoples, minorities, disabled people) are equally essential for democracy as they ensure inclusivity for all groups, including equality and equity in respect of access to civil and political rights.
More recently, in March 2012, the Human Rights Council adopted a resolution titled “Human rights, democracy and the rule of law,” which reaffirmed that democracy, development and respect for all human rights and fundamental freedoms were interdependent and mutually reinforcing.
The Council called upon states to make continuous efforts to strengthen the rule of law and promote democracy through a wide range of measures. It also requested the OHCHR, in consultation with states, national human rights institutions, civil society, relevant intergovernmental bodies and international organizations, draft a study on challenges, lessons learned and best practices in securing democracy and the rule of law from a human rights perspective.
Human rights, democracy and the rule of law are core values of the European Union, too. Embedded in its founding treaty, they were reinforced when the EU adopted the Charter of Fundamental Rights in 2000, and strengthened still further when the Charter became legally binding with the entry into force of the Lisbon Treaty in 2009.
A legally binding human rights framework must be applied universally, and implemented without the ‘interpretation’ and interference from individual governments. Furthermore, the state must fund the means of contract enforcement and free and fair trial legal costs for those who cannot afford it. If the state fails to fulfil this contingent function, citizens simply cease to be free.
I wrote another in-depth analysis of the implications of a British Bill of Rights earlier this year, which includes some of the constitutional implications: The British Bill Of Frights: We Need To Ask What Could Possibly Go Right?