As a practitioner of Criminal Law both before during and after the introduction of the Human Rights Act I find the current debate over it's future somewhat confusing.
When it came into force it had two significant effects. Firstly it saved the UK government a significant amount of money in the long term. The UK as initially a non signatory to the convention but later a signatory without adoption into UK law, nevertheless recognised the convention in a kind of hybrid way. The result was the British courts were the most appealed in Europe. Judges were bound not to give human rights compliant judgments in certain cases, and no lawful remedy was available to the domestic appellate courts. Judges were doing things they knew full well would be overturned but with no way of complying. The sheer volume of cases (in one year the UK was appealed 38 times to the full court. Italy was next with 9)! Many were minor but fundamental breaches of art. 6 or art. 8.
The second effect was to launch the careers of some legal practitioners who climbed on a fairly easy bandwagon, wrote a bluffers guide to the European Convention and thereby got themselves noticed. Notable amongst authors on the subject is the current DPP.
Whilst I agree with the view that ultimately if we are entering the fray of codification we need to avail ourselves of a similar codified level of protection, I do not agree that the Human Rights Act should be repealed. To do so is a pointless hollow act having little real substance and simply a method of appeasing Euro sceptics who are confused by the division of European bodies. Lest we forget the European Court of Human Rights has no legal or constitutional connection to the EU save in the most dissolute of ways.
I have heard from some quarters the suggestion that it is Europe making the UK more litigous. I am bound to say I find this both faintly amusing and also faintly troubling. It is amusing because it fails completely to address the fact that as with so much of our modern culture it comes directly from the most litigious nation on earth - the USA. It has nothing to do with Europe and everything to do with Ally McBeal, Boston Law, and our own homegrown Judge John Deed, as well as the trip and slip ambulance chasers in advertisements for personal injury representation.
This may seem a frivolous suggestion but bear in mind that Law is at base a human industry. It is driven by people. People are not driven by s.3(2)(a) of the Nonsense Act 2000. they are driven by the society in which they live to believe they have an entitlement to things.
It is the great "entitlement" fallacy that has damaged this Country beyond recognition. It is this fallacy that comes direct from Blair and the leftist agenda. To blame Europe for providing the tools is like blaming Nobel for creating TNT. It is "New Labour" who have created the beast not Europe, nor for that matter the USA.
That is why I find it troubling that we should blame Europe. It isn't Europe it's us as a nation who elected a man as intellectually and ethically moribund as Tony Blair and then allowed him to strip this Country of the unwritten decency that has informed our culture, society and constitution since Magna Carta. Don't let them off the hook. It's Labour who have done this, not Europe nor for that matter the USA.
Both may have shown us the path but it is New Labour who have run, skipped and jumped along it. Its time for a real change and for some honesty.
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3 comments:
Minor quibbles Tim.
"Feintly" - obsolescent form of faintly?
Nobel invented dynamite not TNT.
"It is a common misconception that TNT and dynamite are the same thing. Though both are high explosives, there is no other similarity between them. While dynamite is an absorbent mixture soaked in nitroglycerin, then compacted into a cylindrical shape and wrapped in paper, TNT is a specific chemical compound called 2,4,6-trinitrotoluene."
Human Right Act
I think at the Manchester conference William Hague said (in response to a question from me) that the incoming government would need to repeal/amend the HRA as part of "fixing our broken economy".
Post the ratification of the Treaty of Lisbon, can we do this without permission of the majority of our EU partners?
Richard,
Many thanks, you are fo course entirely right regarding Nobel and dynamite and my incorrect use of feintly! Apologies I have made amendments.
I will come back to you on the latter point. As for William Hague's answer, I'm afriad it is that view with which I disagree...
I note my typing has caused another error in my previous comment for which apologies.
Your point on Lisbon is an interesting one and one I have had to re-check to ensure I get it right! It is an exceptionally complicated, but supposedly user-friendly, arrangment. With Europe plus ca change!
The bottom line in very basic terms is that the EU is subject to the provisions of the ECHR following Lisbon. The effect is that all EU legislation must be interpreted into compatibility with the ECHR. The primary method for ensuring such reading up is the new Charter of Fundamental Rights that the EU introduced as part of Lisbon. It is not the same as the ECHR but mirrors it some key aspects.
Importantly the EU's adoption of the Convention does not mean that all EU member states are automatically bound by the new Charter. What it means is that any EU legislation that has application in those States will be bound to be read in conjunction with the EU's duties pursuant to its status as a signatory to the ECHR. I.e. if you take issue with the EU on something your ultimate Court of Appeal could be the ECHR.
Therefore the decision to withdraw from the ECHR could in theory be undertaken unilaterally. It may cause significant political problems but from my reading of it, and more importantly, the wisdom of the Law Society, the Judicial Studies Board and the Law Comission, it would be lawful.
For the EU to withdraw from it you are absolutely right, would require the majority of the Council of Ministers, and it seems to me would in fact result in the repeal or at least partial repeal of Lisbon.
So as a Nation State we could repeal the Human Rights Act and reconsider our stance as signatories, but the EU and our role within it is subservient to the ECHR. (Its worthy of note that the Human Rights Act is domestic legislation and so we can do as we like in terms of amending and redrafting. It would be utterly pointless to amend it out of line with the Convention though as it would cause similar conflict of National and Convention Laws as previously. It is this point that the debate appears to be focusing on without taking on board the point you advert to, namely the ECHR's status post-Lisbon).
The conclusion must be that to "leave" the ECHR and remain part of the EU is going to cause such resounding political and legal headaches that it doesn't bear thinking about.
I hope this explains the position and you aren't feeling feint, or do I mean faint!!
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