And I am not making this up…

Louise Mensch took to Twitter this morning, proclaiming that the Human Rights Act 1998 is loathed by the public, is drafted too broadly, and is a terrible law:

Is it a badly drafted law? In very simple terms (and it is a very simple Act), all the HRA says is that we have to take notice of the European Convention on Human Rights when interpreting law and interpret it in line with the Convention. If that cannot be done, the judge must issue a declaration of incompatibility, which is to say, asks Parliament to have a re-look at it. By my maths, there have been about 20 declarations which have been upheld and lead to a change since the Act came into force. The Act also states that public bodies cannot act in a way incompatible with the Convention.

The Convention was drafted after World War II to ensure the horrors of that era were not repeated. The Convention itself is incredibly simple to read, and in terms of drafting it, er… well, we are largely responsible for that, via Sir David Maxwell Fyfe. But you know, history, who needs to know that?

Do the public loathe it? What is to loathe? The rights protected are:

The right to life -which talks not only about capital punishment, but also about the right to defend yourself using necessary force;

The prohibition of torture and inhuman and degrading treatment;

The prohibition of slavery and forced labour;

The right to liberty and security, with limits placed on the infringement of the right to liberty where the detention is lawful;

The right to a fair trial – which every advocate I know has used at least once;

No punishment without law, which means that you cannot be punished for an act which was lawful at the time of commission, nor can you be sentenced greater than the sentence which would have existed at the time of the act should it have been unlawful;

The right to respect for your private and family life. Some of the first cases using the HRA were under this provision;

The right to freedom of thought, conscience and religion – I may not believe in sky fairies, but I will defend your right to;

The right to freedom of expression – which albeit qualified, means I can write stuff like this;

The right to freedom of assembly and association;

The right to marry – which sadly has so far been read to mean opposite sex marriage, although the Convention as drafted is not explicit;

The right to an effective remedy – that is, when rights under the Convention are breached, there must be a remedy before a national court;

The prohibition on discrimination;

There are a few other articles – for instance, allowing states to limit the political activities of ‘aliens’ (that’s foreigners, not little green men), and allowing states to derogate from the Convention in times of war or public emergency.

What the public seem the loathe is the Daily Mail/Conservative Party version of the Human Rights Act – that which tells us that owning a cat allows an illegal immigrant to stay here. However, as has been demonstrated, that version of the HRA just simply isn’t true.

Is it a terrible law? I fail to see how it is, although I will accept it seems to be a law which annoys governments – especially this one. To me that makes it a good law, one which is doing the job it was intended to do. It is a law which requires fairness, basic standards and refuses to allow public bodies to over-step the mark. For the life of me, I can’t think why they don’t like it.



26 thoughts on “And I am not making this up…

  1. Nice and clear even for this layman. There is a problem in this country though with the presentation and perception of the HRA, ECHR and various other bodies. Sadly, it doesn’t serve our bread-and-circuses politico-media classes to do anything other than sustain this confusion by increasing the volume of disgust and avoiding anything that might actually be, Lord help us, a sensible discussion based on this sort of explanation. It’s the consequence of a soundbite culture I’m afraid.

    Keep up the good work!

    • Thank you.

      Sadly it is seen as Euro meddling, which seems to always fall into the media bracket of Must Be A Bad Thing without any consideration!

  2. Where a right under the Convention involves a balancing exercise (the right to family life having to be weighed against liability to be deported, for example), there may be a perception that tribunals give undue weight to one of the factors.

    That perception may be wrong (as with the cat), but if so it deserves reasoned refutation. And if the perception is right, then there ought to be a means of securing a better balance. It isn’t clear what that means might be, however, which leaves something of a gap.

  3. I concur re Fyfe

    He was

    A prosecutor at Nuremburg
    Solicitor General
    Attorney General
    Home Secretary

    I’d sooner have him draft me a law than Cameron (TV PR), Osborne (Interior decorating) and Mensch (Internet trolling) any day.

  4. The problem with the convention is its vagueness. What does “The right to respect for your private and family life” actually mean in practical terms? What counts as my ‘private life’ – is it anything I want to keep private, things that I’ve actually kept secret, or things that might widely considered to be the sorts of things that would commonly be kept private? Neither the Convention not the Act define their terms in the way that normal legislation does.

    The Convention is a fine statement of principles, but so is “Don’t steal”. The Theft Act, however, is rather more complicated and rather more precise than that. The HRA is bad law because it’s unclear how it applies to most practical situations, so cases using it turn into arguments about the law itself, not about the facts. A theft case (for example) is more likely to centre on whether the accused actually made off with the hundredweight of widgets or not, rather then whether doing so is a violation of someone’s right to respect for widget possession.

    This woolliness of the HRA/Convention makes it extremely expensive and difficult to use. To work like normal legislation it should be clear whether (say) warantless email snooping or same-sex marriage bans violate article eight, whether kettling violates article eleven, or our secret ‘anti-terror’ courts violate article six, and it simply isn’t. Without the precision, the law doesn’t usefully function to prevent bad things happening.

    It’s also bad law because virtually every article that says “You have X right” immediately follows up with “Unless the law says you don’t”, but that’s a somewhat separate issue.

    • I agree with this. It’s caused chaos in certain areas of policy, mostly immigration, where everything has to be litigated at great expense and produces results which the public find incomprehensible.

      The government hasn’t helped by refusing to rewrite immigration statues in an ECHR-compliant way, though.

      • I think the public would find ECHR decisions a lot more comprehensible if they weren’t being actively, continuously and consistently lied to about them by half of our newspapers.

    • I don’t think vagueness is necessarily a problem – constitutions are meant to be vague, to allow some leeway. It’s up to courts to interpret the details. Do you think the US Constitution is also bad, because it says things like freedom of speech without explicitly saying everything about what that means? Wouldn’t the anti-HRA people be even more against a law that told them exactly what had to be allowed?

      You compare the convention to a theft act – but that’s just it, the ECHR is a convention, not an act of law. (And whilst the HRA is an act, it’s about bringing the ECHR into the realm of UK courts, rather than being the convention itself.) I don’t follow your analogy the theft case – it seems right to me that with some things, it *should* be up to a court to decide whether something is right or not, rather than them automatically following what the Government says.

      And given that the ECHR was written shortly after WW2, how is it supposed to be clear on something like email? It’s not possible to explicitly cover everything.

      Having said that, I do agree it’s a shame that some things are a bit vague, but more from the point that it seems to give too much leeway to Governments to get away with bad laws (e.g., Article 10 gives freedom of expression, but then waters it down by saying its subject to a long list of restrictions, such as “for the protection of health or morals”, which then leads to the Government getting away with criminalising possession of drawings, saying Article 10 doesn’t apply as it’s a “moral” issue). But I don’t think it’s a problem that the ECHR doesn’t explicitly list everything.

  5. Even taking the Tweet at face value the public don’t loathe the Human Rights Act they loathe it *as it is portrayed in the media*.

    Whose fault is this misrepresentation?

    a) weak politicians
    b) media barons (and their lackeys) with an agenda
    c) others

    The role of the media is particularly important. In this area, as in many others, information has been controlled and distorted. If I hadn’t worked in Human Rights I’d probably be against it.

    To be fair to Ken Clarke he rubbished Theresa May’s reactionary nonsense about not deporting people because they have cats, but wasn’t he slapped down by Cameron? And May is still Home Secretary.

    An informed debate may change public opinion, but what is the forum for that?

    The HR Act needs prominent, articulate, persuasive advocates.

    Related question: Why is the anti-HR agenda being pursued? What’s in it for the detractors?

    • What is in it for the detractors? I am sure they find drafting Convention compliant legislation a bit of a pain to say the least, and then there is that peskiness of having their conduct being picked over by courts, both national and European. Of course, they could just make human rights compliant decisions rather than complain about the Convention but why do that? ;)

    • I think it is very easy to blame the media, and bury your head in the sand over decisions that generally do irk the public.

      The deportation of Abu Qatada, and voting rights for prisoners.

      As two recent examples of how the HRA/ECHR have interfered with decisions the of a sovereign Parliament, when realistically, they had no right to do so. I like the HRA and the ECHR, but I also like the fact hat I can decide who runs my Country and therefore how it is run. I never voted for any of the Judges in the EctHR, and nor could I even if I wanted to. So we have a bunch of unelected, mainly foreign individuals dictating to us about what we as a sovereign nation can do in the running of our own Country.

      People complain about the EU having that effect, and we get to vote for MEPs.

      Have we somehow been mislead on those two very high profile cases? or was the media just giving us the decisions of the ECHR, which massively delayed the deportation of Abu Qatada, a self-proclaimed terrorist, and gave voting rights to prisoners.

      Saying that it is well drafted is just nonsense, someone else highlighted the failings of Article 8 and no one has replied, because the point is well made. When Article 8 can be stretched to include the physical and mental integrity of an individual you have to wonder whether the people that drafted this ever had that in mind, and if the drafters were not thinking of it, were the people that signed it thinking about that when they signed it?

      I think not, and we know what happens when the drafters and legislators create a law which is then stretched, we have the MET police running a 24/7, 365 day a year stop and search order on London. That was not the point, it had a limit for a reason, but it was not well drafted and the police were able to use it every single day without end.

      As I said though, I like the ECHR/HRA but I think that an enactment should be in place that says that any decision of the ECHR/HRA can be debated in Parliament and if Parliament decide that the ECHR is wrong, then they do not have to apply their decision. It gives the decision the publicity it needs, but allows us to remain a sovereign nation.

      I apologise for the long post.

  6. A very good question as to why some continue to pursue the anti-HR agenda. One can only assume that it is becasue they don’t want to permit another individual the rights conferred by the Act. My follow on question is to wonder why this does not attract a proportionate outcry.

  7. I wonder which of those rights Louise Mensch would happily do away with? Probably somewhere between but not including -1 and 1. What we need is the case of a white, middle class, middle-of-the-road, non-radical UK male under the threat of deportation to a country which uses torture and for the ECtHR to block it on similar grounds to those originally applied in the Abu Qatada case.

  8. Louise Mensch is one of those new MPs who is an absolute nightmare. I wonder which of the rights she would herself give up? Far too many MPs seem to be about reducing the rights and freedoms of the British citizen rather than seeking to enhance freedom and, with it, prosperity.

  9. Great article! Perhaps the weakness is that we don’t have these rights completely – we only have them in so far as they may possibly be fielded via a Public Authority. Local Authorities in particular don’t seem particularly equipped or resourced to make judgment calls as to they can or can’t act in a way that is incompatible with a Convention Right.

  10. As a prosecutor, I have always considered the Human Rights Act to be a major tool in obtaining justice for victims. Its introduction meant that the need for the accused to receive a fair trial was balanced against the rights of a victim to have access to justice . Witnesses who were previously considered to be ‘inherently unreliable ‘ were able to have their evidence heard and tested by the court . These included the very young, severely disabled , the very scared . The HRA made a conservative system of justice look at itself critically and find a way to enable these groups to receive the protection of the courts .

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