A WASTE OF SPACE

Lord Hoffman is no fool. He is the second most senior law lord in Little Britain, and by all accounts has a razor sharp intellect. But that’s not all we have in common. He is obviously an avid reader of my blog, and in a recent speech, has adopted my swingeing criticisms of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He puts it more tactfully than I, but in substance he questions the need for a European dimension in English domestic law, and regards the Human Rights Act 1998 as at best unnecessary and at worst downright interfering.

A brief review of the reasons behind the Convention may be apposite. It came into being in 1950, in the immediate aftermath of the Second World War. All the signatories at the time were Johnnie Foreigners, and all had suffered, in one way or another, as a direct result of the conflict. They had either been occupied by the Master Race, or, like France, had come to an ‘accommodation’, or, like Italy, had started the war on the wrong side. Whilst Little Britain had endured its fair share of hardship, we held out against Jerry until the Americans came to our rescue.

In 1950 Europe was still emerging from the turmoil and human rights were as rare as hen’s teeth. France, which, according to the French, had liberated Europe from the Nazi menace single handed, turned their eyes northward to a nascent Germany, which, again thanks to the Americans and Marshall aid, was rebuilding itself at a commendable pace, and rapidly returning to centre stage of the European powerhouse, but without the goose stepping and all that went with it. More recently, Europe has been swollen by the accession of several former Soviet republics, where human rights had been honoured more in the breach than the observance.

Contrast all this with Little Britain, where we had enjoyed a sort of human rights from as long ago as 1215, where parliamentary democracy had been a way of life for centuries, and where the common law, supplemented by statute, was the envy of the world. That’s not to say it was all sweetness and light, mistakes were made, but we lived, and still live, under an enlightened rule of law. Johnnie Foreigner had very little to teach us in this regard, and to this very day, I remain astonished that the basic rights and freedoms of a civilised society need to be committed to paper at all. Freedom of expression, the right to a fair trial, a ban on inhuman and degrading treatment, to mention but three, should surely be taken as read.

So in 1998, when Tony Blair’s New Labour government enacted the Human Rights Act, it was nothing more than an overt display of their European credentials after a period of indifference under the blessed Saint Margaret of Finchley and her limp wristed successor the totally useless John Minor. If ever there was a case of somebody promoted above his station, this was it.

But this display of European credentials came with a price. We adopted the Convention, warts and all, and virtually overnight, English domestic law found itself subservient to Strasbourg and the European Court of Justice.

Leaving aside the fact that on present estimates, there are over 100,000 cases pending for determination, with an average determination time of four years and counting, there are two major flaws in the interpretation of Convention rights. The first is the ‘right’ itself, enshrined in eleven fundamental Articles of varying hues and colours, and approaching any given right from Romania involves a different journey when approached from Holland, and so on and so forth. To coin a phrase, the breach of a right is in the eye of the beholder, and one sees it differently from another. In short, one size fits all doesn’t work. Secondly, the question of ‘proportionality’ has never been satisfactorily resolved. What may appear a good reason to ‘avoid’ an Article right in one country is not necessarily a good reason to avoid it in another.

There are times when Convention rights are taken to the extreme. Two egregious examples will suffice. Inmates of one Scottish prison are being paid compensation for slopping out, as this is in breach of their human rights. In the second case, a man, originally from east of Suez, recently complained that his human rights were being breached when he was prevented from cremating his grandmother on a bonfire in his back garden. And covert interception of telephonic transmissions, an essential tool in the fight against crime, is routinely challenged as a breach of the right to a private life.

And so it goes on. Everybody in the legal profession has his favourite. So back to Lord Hoffman. What do Convention rights give to Little Britain that we didn’t enjoy before 1998? Answers on a postcard please.

I hope that the next Conservative government will see the folly of this uneasy and unworkable partnership between English domestic law and European Convention rights. They should repeal the Human Rights Act, and let sanity and common sense prevail.

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david

David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

3 thoughts on “A WASTE OF SPACE”

  1. ‘What do Convention rights give to Little Britain that we didn’t enjoy before 1998? Answers on a postcard please.’

    Lots of work for the wig-wearers and yet more if the HRA were repealed.

  2. You know, you could make your critique a bit more persuasive if you at least got the basic facts right. Even a 5 seconds glance at Wikipedia (not to mention any serious textbook on Human Rights Law) wouild have told you, that the ECHR has nothing to do with the European Union whatsoever, but rather with the Council of Europe. Implication:
    the sentence “English domestic law found itself subservient to Strasbourg and the European Court of Justice.” is pretty much nonsense, because the European Court of Justice is an institution of the European Union whereas the Convention is safeguarded by the European Court of Human Rights.

    I know this might sound technical and petty arguing, but I am for good reason wary of the judgment of people on matters which they seem to lack any familiarity with whatsoever. And the distinction between European Union and Council of Europe, resp. European Court of Justice and European Court of Human Rights is “Human Rights Law 101”, to use that nice American term.

  3. Oh and by the way: What on earth would repealing the Human Rights Act do? The UK would still be under the obligation to honour the convention to which it is a party, it doesn’t matter whether the Convention is codified into domestic law (ref. eg. Switzerland which does not have a domestic Human Rights Act) — the convention provisions would either be then directly enforced by the judges or, if that does not happen, every individual will just need to petition Strasbourg in order to be awarded a judgment and damages. Oh wait, of course the UK could just ignore these judgments. It might, though, be thrown out of the Council of Europe for that, which might be a tad bit embarassing, because the only other European country that is not member of the Council is Belarus. Right, the UK could also quit the Convention. However, the European Union is quite keen on its members respecting and adhering to the Convention. So the UK might get a couple of problems on that front (besides looking completely ridiculous on the international level as possibly the only state to ever have quit a human rights convention while still being supposedly subject to the rule of law).

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