Wednesday, 3 August 2016

A Rights Mess

I am just back from a few relaxing days in Freiburg in the Black Forest. On the train ride home I started thinking about the European Convention of Human Rights (ECHR) and what might happen after the UK leaves the EU. Actually, that is a downright lie. It is all that remains of a not-hilarious fictional anecdote that started in Freiburg, wound its way through not very much of interest and ended with the Human Rights Act (HRA) .  In reality, I read 50 pages of a crime novel and had a bit of a kip. It was the perfect end to a long weekend. Enough of my holiday cogitations, there is serious work to be done if I am to remain a citizen of the EU.

As you might have already guessed, this post is going to be about the ECHR, why it matters, and why leaving the EU might have serious consequences for human rights in the UK. If you're Scottish maybe the arguments presented here will help you or someone you know choose the EU over the UK.  We're going to find out that Tony Blair's government wasn't entirely bad, how life in the UK has been transformed as a consequence of the HRA, and then think about why the current crop of Cabinet Brexiteers might bring an enlightened policy to a horrible, depressing and messy end. If you're still reeling with shock at the combination of "Tony Blair" and "not all bad" please do read on. Really, in his first term he implemented two policies that were actually pretty good. One was the Human Rights Act and the other was the Scottish Parliament. It's just a pity he didn't place the Iraq War in a human rights framework, as he did with the Scottish Parliament, before destroying his reputation along with a large chunk of the middle east.

The ECHR is no more than a set of human rights laid out in a legal document. If you've not done so already then I urge you to take a gander at it. I've read through it a couple of times and it seems to me to be quite uncontroversial. To save you the bother of reading all that dry text I'll summarise a few just for you: the right to life, the right to live free from torture, the right to a fair trial, and the right to freedom of thought. Nowhere in that document does it grant rights to be addressed at all times as the Glorious Eternal Emperor of Uranus or to habitually dress up in a lion costume at your job as a tax advisor. If anyone can find a controversial item in there I shall send you any issue you like from my extensive collection of Commando Comics.

This could be yours if you beat me at ECHR bingo.
Every nation of the EU is a signatory to the ECHR. This means that citizens of EU nations can ultimately take their case to the European Court of Human Rights (ECtHr), where the Convention is upheld. Tony Blair's government noticed that it was actually quite difficult and expensive for UK nationals to take their case to the ECtHr in Strasbourg. Now, it does seem a bit of an injustice if your rights are denied due to the legal system being complex, expensive and time-consuming. If these human rights are so uncontroversial shouldn't we bring the framework of human rights of the ECHR into the UK justice system? It sounds quite sensible to me. How about you? There is a Commando Comic in it if you have a convincing counter-argument so do get in touch.  This is a genuine offer even if I am the judge and arbiter of my own competition.  Yeah, go complain to Jacques Delors if you don't like the rules. 

Instead of judges in Strasbourg deliberating on UK legal cases it seems a much better idea just to have UK judges take the ECHR into account before they make a ruling. Isn't that going to lead to an avalanche of litigants taking their local council to court because they, for example, failed to provide key services vital to their human rights? Well, it would have if Tony Blair's government hadn't enshrined human rights at the centre of every public institution. That's right, public institutions must act in accordance with the ECHR. If they don't you can take them to any UK court and your rights in the ECHR will be respected. You  might have heard of a recent case involving the Named Person policy.  The Scottish Government lost the case because they were not acting in accordance with Article 8 of the ECHR.  They will need to think again because the ECHR is something that we should all value and not just when it suits us.  If, on the other hand,  you fail in a UK court and believe you still have a case you can still traipse over to the European Court in Strasbourg. Your chances are rather low, though, because the UK government generally wins. I see this as a positive because it means that UK courts are typically doing a good job with human rights.

These changes were all introduced in the Human Rights Act by Tony Blair, family man and reputed war criminal. Please don't let his involvement put you off. It would be fair to say that the UK was transformed for the better as a consequence of the HRA. For example, wheelchair access to shops and key services for the disabled and elderly have all been improved. What's not to like? 

I ended that last paragraph rather cleverly, didn't I? I'm getting the hang of this blogging lark. You've guessed it, not everybody seems all that keen on the ECHR. You probably read about it when you learnt that that HRA prevented a criminal being deported because he owned a cat. Maybe you read about it again when Theresa May repeatedly tried and failed to deport a man with rather unpleasant views who may actually be no worse than a terrible choice for a guest at a dinner party. There are countless examples of this kind of misinformation due to a campaign that seemed to spread across tabloid-land whereby human rights became a dark force intent on destroying Britishness itself. I'm not going to debunk any of these tabloid tales because it is done with much more authority here and here and here.

One thing I'd like to say about the ECHR is that is is very easy to understand.  Thousands and thousands of cases have been prosecuted successfully without any bluster or fury from a "journalist".  If you're a fan of Occam's Razor then you'll know not to throw away all your hard work just because you get some noise in your graph.  Even if a criminal couldn't be deported because he had a cat I still wouldn't throw away an entire legal system based on a single event.  Obviously, that whole cat thing was a sham but I'm sure you get the idea.  The simplicity of the ECHR is surely its real power, even if it does result in the odd ruling that might be cast in a negative light by an angry tabloid editor and their team of "journalists". They should save their outrage for the time when the general case stops working due to their "suggestions for improvement".  Then they should go to see "A Man For all Seasons", which tackles the thorny issue of legal complexity with a cunning forest leitmotif. Ha, I should get a job on The Late Review. What, it's not on the TV any more?  Gutted.

There's been a lot of talk about withdrawing from the ECHR entirely and introducing a British Bill of Rights. This is a real possibility now that the UK is leaving the EU. If Theresa May wants to take back control, she could focus her attention on the courts. We need to ask ourselves why anyone would do this. After all, it would surely still involve UK judges making rulings after taking a  framework of human rights into account. No change there, then. The messy disaster of human interaction is likely to throw up the same kinds of edge cases with a British Bill of Rights as it does with the ECHR. No change there, either, unless David Davis thinks he can somehow better encode the same human rights to, perhaps, a more orthogonal set. I don't have any confidence that David Davis understands orthogonality or would do a better job than the original architects of the ECHR, who, after all, were mainly British themselves. So, no change there. Tabloid editors will still feign outrage when a judge occasionally makes a decision that can be skewed with Fleet Street fury. So, no change there, either.

What could materially change if the UK withdrew from the ECHR and then repealed the HRA? I suppose a few things could change. The first might be that courts don't incorporate the British Bill of Rights into their judgements. Perhaps the Bill of Rights would be reserved for a higher court. This does not sound like a good way to protect the human rights of UK citizens. Next, public institutions may be freed from acting in accordance with the Bill of Rights. Released from the feedback mechanism of court action they might as well just do what they want. This does not sound like a good way to protect the human rights of UK citizens. Third, the human rights encoded in the British Bill of Rights might not be such a comprehensive set of rights as those in the ECHR. Maybe they take out the right to work or the right to life or the right to a fair trial.  No matter the answer, this does not sound like a good way to protect the human rights of UK citizens.  You may have noticed that I put the main thrust of this paragraph in bold in case I hadn't made the point well.  If I had access to an internet hammer from the future I would have used it instead. What are those VR boffins wasting their time on? I need internet hammers now.

I'm not sure why the current crop of Brexiteers seem so keen on withdrawing from the ECHR.  I can imagine a scenario where the right to life is qualified in order to open the door for the reintroduction of the death penalty.  I can also imagine a scenario where the right to privacy is tempered to see off challenges to the Investigatory Powers Bill. None of these sound like positive steps.  Perhaps they just don't like the Euro element of the ECHR and like to play to the camera spouting the word "British" again and again in the hope that makes everything better.  Depressingly, that is actually quite a good way to win elections and referenda right now. I'm not sure it is such a good background for drafting an entire human rights framework.  One way or the other, I fear that a British Bill of Rights would be a step backwards for human rights in the UK, either by design or simple  incompetence.

"The glorious leaders of the 2016 Leave campaign battle against the rapacious Euro empire". Actually, somewhere in Minsk (not in the ECHR).  Is this what you want above John Menzies?
It's been a long journey from Freiburg, to Tony Blair, and then Occam's Razor.  And that Monkees song was bloody awful, wasn't it?  Maybe I'm just tired but leaving the ECHR is actually a terrifying prospect. As a consequence, leaving the EU is also a terrifying prospect. I'm Scottish so I'm clinging to the hope of Scottish Independence and continuing membership of the EU. If I had to choose between the UK and the EU I wouldn't hestitate to choose the EU. Human Rights is one of the reasons behind my choice: I simply do not want to live in a country like Belarus, the only nation on the European continent that is not a signatory to the ECHR.

Over and out,


PS Being a citizen of the EU brings all sorts of rights that could easily be repealed after Brexit. I'm going to blog about these too.  Stay tuned for a thrilling discourse on the working time directive.  

PPS I have been to Belarus on holiday. It is by far the most foreign place I have ever visited. Maybe those human rights help to shape a nation's civic culture. Fancy that.


  1. I reckon that May will replace the European model with one exactly the same, but British!!!!

    The advantage of this is that it will keep "foreigners" out of the whole process. There seems to be very little that annoys the Brits more that "foreigners" getting involved in their affairs. Unless, of course, the "foreigners" are American presidents or secretaries of state, in which case it's fine. Obviously.

    I'd like to go to Belarus. Maybe for a weekend!

    Great piece. Most readable!

    1. I think you are right about a replacement "British!" system being exactly the same as the current one. There is always the possibility of bungling it, though.

      Belarus is a very strange place, indeed. The architecture in Minsk is unbelievably opprressive. There really is that sense of being very small and at the mercy of the state.

  2. I quite like that Monkees song.

    1. It certainly takes alll sorts to make a world! I like the Monkees a lot but I always find their balladeering a bit rubbish. Don't know why, but that is the mystery of pop.

  3. I hate to burst your bubble but the Scottish Government did not lose the case on Named Person. All the court ruling will do is delay implementation by a few weeks.

    What the Supreme Court did was require a paper trail (ie red tape) on inter agency/government department sharing of data) supposedly in the pursuit of ECHR provisions.

    Since you have read the act perhaps you can you point me to the paragraphs that say that there has to be a paper trail?

    1. I don't want to get bogged down in the definition of a legal victory but I'd say an inability to proceed with the proposed legislation is, to most people, the same as losing the case. If the court had made no objections to the legislation would you say the Scottish Government had "won" the case? If not, which word would you have used? Not trolling, genuine question.

      I'd say it is pretty clear why the legislation met with criticism (note my use of a non-leading term, there). From the the judgement (you will find it in Section IV: Remedy): "...may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents,through the sharing of private information". The court has ruled that the sharing of private information does not have the necessary checks and balances to guide public officials. In short, there is no legal framework to stop public officials acting in an arbitrary way that might infringe Article 8 of the ECHR. The ruling made no mention of a paper trail at all. It merely said that further legislation needs to be proposed that will guide public officials in a way that protects privacy. In fact, the court was quite clear not to propose a concrete solution ("It would not be appropriate for this court to propose particular legislative solutions").

      Amendments, of course, can be made to the proposed legislation. I'm sure that is exactly what will happen. I even hinted at that in my post. I think you're reading a lot of meaning into a single word in a single sentence that really isn't there.


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