23 May 2010

Human Rights Act: "Oh what a tangled web we weave..."

Before the General Election, I strongly criticised the declared Tory manifesto policy:

"To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights."

There are many different grounds on which a cogent critique of this policy could have been (and can be) mounted. I spent most of my time trying to tease out the Scottish implications in the legal context of the devolution settlement. As it happens, these objections have been at best peripheral to the debate in Westminster, which is largely seen as being informed by Conservative and Liberal Democrat divisions on the goodness of the Act. Cries of "Scrap the Act!" may be understandable agonistic declaration of feeling, if I was a tubby Tory  tribune, bloated with an inchoate sense of resentment and with loose but undeniable suspicion of Europeans - but the detail never really stacked up. How could international standards be lowered or altered, if you simultaneously refuse to loose the international obligations which compel the observation of those standards? Some critics will be consistent of course. Leave the Council of Europe! Leave the EU! In one fell swoop, the deed is done. The point is that Tory critics of the Act propose and proposed neither of these things. In the event, Tory notions were overtaken by the hung parliament and their new elbow-friends in the Liberal Democratic Party, with rather different ideas on keeping the Act. In this week's 30 page coalition agreement, the relevant section reads as follows...

We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

As others have noted, the wording here is important. It may be that between their Commissioners, the Westminster Government can agree on a Bill of Rights. This could be a British affair and the Human Rights Act might be repealed. Or to put it another way, the Human Rights Act would be discreetly wrapped in the Union Jack with a few more friendly sections and guarantees added. Would that satisfy hostile critics? Largely, this depends on the basis of their objections. If the standards are the problematic thing - whether on non-deportation of those likely to suffer torture or death or fair trial rights or what have you - we can expect a British Bill of Rights to replicate precisely the same issues which some of the tabloids find so troubling. A Bill of Rights, the the context of continued observation of Convention standards, could never be a solution to their problem. If, by contrast, your ire is stoked by the word European, in your simplicity you might well feel soothed by the domestication, distracted by the packaging. Life is more complicated. Most criticisms tack somewhere in the centre of these two poles, interchangeably moving from one register to the other as the rhythms of their outrage dictates.

A multitude of examples can be culled from the Daily Mail's sputtering outrage at the text of the coalition agreement. Crying "Human Rights cave-in including this monstrous quote from the crackingly fatuous Tory MP for Monmouth, David Davies, who suggests:

"Active members of Al Qaeda and the Taliban are living in this country and not being deported because of concerns about their human rights if something horrible happens to them if they are sent home. Personally I would have thought that would be a bonus rather than a reason for not sending them back."

"No middle way on Human Rights Act" proclaims the Daily Mail's leader article. Yet even here, there are hints about the practicality - and implications - of implementing the Tory manifesto commitment, if it is understood as fundamentally removing the standards of human rights protections required by signatories of the European Convention on Human Rights and Fundamental Freedoms. Quoths the opinionated column...

"... on a question such as this - to repeal an effectively unamendable law or leave it in force - there can be no middle way..."

Quite so. And that is why it was always a daffy dunceman's policy. The Conservatives deliberately mislead their voters about what was possible and what they were actually proposing to do. This wasn't a great secret. It is complex, perhaps, the legal implications taking a bit of time to spell out. However, it doesn't and didn't take a genius to figure out the fatuousness of the Tory's Janus-faced rhetoric on the Act. If tabloid newspapers couldn't see this, more fool them. Stick it to the sods who lied to you, certainly, but don't pray try to convince us that you're wholly surprised. Three articles over the second half of the week basically reiterate this essential point. Love and Garbage rightly takes Nick Robinson to task for his amazing ignorance of the relationship between the Human Rights Act and the international obligations of the European Convention. I repeat, none of this was a great mystery. The impracticality of the Tory position was self-evident and repeatedly identified as such in the blogosphere well before the campaign. As the learned L&G says, part of it might be that:

"The Conservatives were not questioned on the policy before the election because the journalists didn't understand it was cobblers."

I'm not so convinced that we should take ignorance to be quite so general (but in Robinson's case, I'm willing to stipulate that it is probably genuine). Nevertheless, the fact that a BBC political editor doesn't know the legal status of his arse from his elbow is a crushing indictment of the expert amateurs in the press who so loftily snoot and sniffishly condescend about writing in the blogosphere, from their comfortable "professional" armchairs. Maybe we'd bashfully take the telling, if only these learned media souls didn't cock up so regularly and spin total misinformation. On this theme, advocate and former SNP MSP, Duncan Hamilton, reiterates the confusions which beset the "scrap the Act" policy in his article in Scotland on Sunday that the "Bill of Rights debacle exposes Tory and Lib Dem divide".  Unlike the gormless Nick Robinson, fellow BBC man Mark Easton is on the ball and sets out cleanly and clearly why in substantial policy terms and practical politics, there has been no Tory U-Turn on Human Rights. For those of you new to this area, unfamiliar with the finicky details, I commend the piece to you as a clearer exposition than I could rustle up. 

Meanwhile, expect the Daily Mail and company to whine their vengeful whines, purple with a sense of betrayal. And indulge in laughably ignorant histories of "Britain" and her ancient rights, no doubt as a form of cathartic transcendence. It is only just to say that their feelings are not wholly unjust - it is without doubt that the Tories were fundamentally dishonest in how they talked about the Human Rights Act and what meaningful steps they intended to take to change its strictures, if elected to governmental office. The cynicism of the thing is that the Daily Mail and other organs of public commentary must have known this was the case. Yet they continued to draft their righteous and fatuous Jeremiads, inevitably screwing the Tories, whether they had won an outright majority in the General election or not. There is simply no way that the Daily Mail's outrage is anything other than carefully staged, carefully calculated based on the anticipation that the Conservatives renege. While I agree that there will be dissent on the Government benches on this issue, its important to realise that this ballyhoo isn't solely or even primarily the result of the  divergent attitudes to the Act in the unanticipated coalition government. The practical constraints and wilful misrepresentation of the Tory position on the Act was always going to lead to this crunch. Oh what a tangled web we weave, when at first we practice to deceive...


  1. Excellent thanks. The tragedy of the HRA is that so many law-abiding people can become the victims of it. What about the pensioners who die of hypothermia or starvation every year. They are victims who don't realise those who profess to care for them (governments) are breaking the HRA. Perhaps I'm being over-sensitive.

  2. I still haven't given up trying to convince you on this Subrosa!

    I think there is a cogent case to be made precisely along the line you mention, I only find it strange the way you put it - victims of the Human Rights Act? Surely victims of collective neglect, a failure of the moral imagination and culpable social inattention. I think I see where you are coming from now. Partly, I need to start thinking less like a lawyer, in terms of specific articles and particular duties.

    Your argument is, I think - look at these innocent people who suffer, who are ignored, whose dignity is assailed by illness and poverty. Why do we never talk about their human rights? Why instead to we spend our time on rights to trial or the liberty of the subject or prison conditions?

    If that is your argument, a few defences. The European Convention is primarily concerned with civil and political rights - the relationship of the individual to the state on voting, subject to the State's interventions, whether on privacy or liberty or physical mistreatment.

    While there are international conventions on economic social and cultural rights, these generally don't have the same 'legal' character as the rights under the European Convention. This may explain somewhat the "villain's charter" line. While economic, social and cultural rights may be very relevant to any member of the population, questions of liberty, fair trials, reasonable treatment in custody - these are all rights of suspects and convicted persons, of little relevant to your average person. This is simply a feature of the constrained ambit of the European Convention - and hence the Human Rights Act. It doesn't really "fail" to address the very pertinent issue you mention, because it was never really trying to do so.

    Human rights is a big discourse. I've no problem with a language of protest couched in their terms. The Human Rights Act, however, is first and foremost a legalistic document, currently understood highly legalistically. Its important, I think, to keep some analytical space between these two ideas. The people you mention aren't the victims of the legalistic structure of the Convention. They struggle to benefit from it, that is for certain.

    However, that doesn't entail scrapping the Act. The issues which are covered by Convention Rights remain important. The admission should be an easy one to make: HRA doesn't solve every problem, answer every ill, salve ever wrong.

    Where its limitations cannot dispense justice, this seems to me to demand political attention to be paid to neglected issues, not the abolition of the Act.