Thursday, 6 October 2011

Human Rights and Wrongs 2: Misjudgement Day

Well it seems as good a time as any to roll out some more grumpy misgivings about 'Human Rights', seeing as Mrs May has put them front and centre with her conference speech. Yesterday saw a storm re-emerge over the interference in British law of the European Convention on Human Rights (ECHR or Convention); Article 19 of which created the unambiguously acronymed European Commission of Human Rights (ECHR - or Commission) and the European Court of Human Rights (ECHR - or Court). Actually more specifically the Home Secretary was talking about the Human Rights Act; the 1998 British legislation codifying into British law pretty much word for word, the main articles of the Convention. Now we've got the difference between those lot sorted, we can move swiftly on...

I've blogged before (here and here in the most part) about human rights. I have long promised some more on the matter, but I always tire at the sheer enormity of the task ahead and choose the easy route and shout instead about people who engage their handbrake at traffic lights and those who queue at passport control with their passports buried deep in their bags. They're easy wins you see. Now Theresa May's speech talked in part about amending British laws to deal with those foreigners who come to Britain, commit crimes and then use aforementioned legislation to remain in Britain and avoid deportation. I'll talk about that today, but also the wider scheme of things - what essentially are human rights?

Simply put human rights are those things that one has a right to by being human. They are the codification of what is considered morally to be owed to a human by his very existence. Unsurprisingly we see the right to life, the right to liberty, the right to freedom of speech for example, as basic human rights. They are all by definition generic - they apply equally across the spectrum of humanity; to tribes in the depths of the Amazon, workers in China and the inhabitants of Pratt's Bottom in Kent.

It is one's humanity alone that places them in the Venn diagram circle marking out those to whom human rights apply. It is not belonging to one nation or another, nor being part of on political system or other. So, we should not view rules of said nations or political systems as existing on the same level nor should we do the same with prevailing social norms. They come at a sub-layer of humanity; that is, human law is an absolute foundation on which other systems of law may be built. Those systems may make constitutional law to enforce human law or indeed derogate from it, but that does not alter the ultimate truth of a human right.  

I go into such rather confusing detail because 'human rights' have been perverted in their meaning, certainly in Britain to include some quite ludicrous things. Hereafter I hope to look at a few human rights and wrongs issues, both trends and particular cases. There will be some overlap from case to case so bear with me. This is going to be a long one…

Let us kick off with voting; one of several issues concerning prisoners where the Government has fallen foul of the Court. You can guess where I stand on this one. Being human has nothing to do with voting. Voting is a function of a Governmental system. A Governmental system is a layer apart from human law.

If you live on a desert island on your own (with presumably one luxury, the complete works of Shakespeare and some dubiously chosen music) you are human and should be afforded (for example) the protection of human rights to life, free speech and peaceful assembly if one can assemble a crowd of one. You have no human right to vote though. Being allowed to vote is down to the law of the land - it is a constitutional right, not a human one, and there is no constitution of which Robinson Crusoe is aware. The constitution can say what it likes, as long as it is not diminishing the rights as laid out in the Convention. Article 17 states "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Since disallowing prisoners the right to vote is nowhere to be seen in the Convention, Article 17 has not been breached.

A prisoner denied the right to vote loses not a human right but a constitutional one. The constitution offers certain privileges to its law abiding citizens, it simply reserves the right to revoke these privileges should other areas be breached. It's like having your membership of the golf club rescinded for widdling in the plant pots. You haven't broken the higher law (of the land) but you have broken the club's narrower rules. That analogy simply transfers up one level from constitutional law to human law.

There is a similar story with internet connection, satellite television and other such luxuries that some and indeed many (morons, who unfortunately probably have the right to vote) now think qualify as human rights. They are not human rights, they are niceties afforded by increasingly more people in today's technologically developing society. The fact that more and more people consider them base or core amenities and products as opposed to luxuries is neither here nor there. The zeitgeist has no effect on human law. The man on the desert island must still be protected from false imprisonment but it is not necessary under the Convention for him to be given a 10mb internet connection and Sky+. When you get back to the bare bones of the Convention, it offers none of these things that are claimed by many. It is a worrying sign though of the mood of entitlement as opposed to earning that surrounds us today.

The problem, of course, is in interpretation.  There is even an Article to cover that - Article 18, which states "The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed." People constantly misinterpret Articles, or seemingly deliberately ignore subsections of said Articles. As Mrs May pointed out yesterday, Article 8, the one used to spare deportation on the grounds of right to a family life (and a cat) has one such subsection. It mandates respect (we'll come back to that) for family life. However, it qualifies it that this can be waived if it is "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Many of the Articles are similarly qualified - Article 9 on freedom of thought, Article 10 on freedom of expression, Article 11 on peaceful assembly. They all allow the waiving or breaching of the human right they outline if it is in the interests of public safety, prevention of crime, protection of health or morals etc. Now these are very wide-ranging caveats. The right to respect for a family life is obviously intended to be waived if it means keeping a dangerous man in the country (public safety), or a known serial criminal (prevention of a crime). Indeed under the protection of health or morals one could justify removing someone to maintain the moral fibre of the country - it could be argued it erodes the moral fibre of a country when a foreign convicted killer is allowed to remain in the country he has done nothing but abuse. This is quite important as there will be a counter argument to the 'public safety' argument for released criminals who supposedly have paid their debt and are rehabilitated. 

Radical preachers who spew forth hatred and incite violence against this country are catered for too. Article 9 amply covers that. The caveats are there, they are just being ignored. Cases of burglars being killed by homeowners who have discovered their nefarious activities and feel threatened are covered under Article 2. It states that "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence". However, we make a big song and a dance about the rights of the burglar as if that caveat did not exist. Likewise I went through at great length here about privacy versus freedom of speech. Clearly there are times when Articles will be on both side of an argument, and that is when common sense and the application of caveats must apply. 

Furthermore, when people claim a right to a family life, they misquote the Article in question. As I covered here, it is right to respect for family and private life, not a right to family life or privacy themselves. Common sense dictates that someone wilfully committing crimes knowing if caught he would face extradition shows little or no respect himself for his own family life. He places it in jeopardy himself - why would a court have to do more than he would? This reading of the Article is just in addition to the caveat which should be more than enough to see the human right lawfully waived.

Likewise, those who claim they must be given the right to have a family whilst in prison are wide of the mark. They have only the right to respect for their family life. Again, a respect they have totally failed to show themselves, buy putting themselves in a situation where they may be unable to have a family life. They clearly give up their right to respect for their private life - we lock them up in prison - why do people take umbrage at the family part of the same article? They have various constitutional liberties removed by their breaching of constitutional law. Their human right is to respect for their family life, not for a family life. A private and family life is what law abiding citizens get. Those rights are removed by the caveat for among others, protection of morals, and the fact that common sense shows the criminal has himself shown nothing but contempt for his own family life or chances of it.

It could be said it boils down to the fundamentals of imprisonment. It is for the protection of the public that people are imprisoned and for the punishment and rehabilitation of the prisoner. Without punishment there is unlikely to be recrimination and subsequent rehabilitation. If we waive the removals of any freedoms, the deterrent of imprisonment is removed to the detriment of society - without deterrent crime will go up, clearly not in the interest of public safety. Therefore it is legal to waive various human rights under the protection of society. Not least, it just makes sense.

It is clear to me that whilst well-meaning, the Convention (and derivative HRA) is too loosely written. Despite the wording being there, far too often the judiciary (British and European) misinterprets its intent (contrary to Article 18). No-one can surely think that the Convention is not often being used for purposes other than that for which it was intended? This was a convention that was formed in 1950 against the backdrop of the inhumane treatment meted out to so many humans in WWII. It was never meant to stop lawful countries deporting dangerous terrorists.

Not only is there the issue with misinterpreting Articles and ignoring caveats, but also there is no framework to judge one article against another. Classic examples are of the foreign radical clerics or terrorists who despite being ordered deported under the caveats for public safety and non-incitement of racial hatred are given leave to remain on the grounds they might face ill treatment in their home countries (against Article 3). Perhaps they should have thought of that before alienating yet another country? Surely when a conflict of Articles arises, there should be legislation to show the balance must fall on the side of the righteous not the sinner?

So where do we go from here? A British Bill of Rights is a start, but it will have no effect whilst a European Court using the Convention as framework is a higher authority.  Some real direction and leadership within the judiciary would be a start, but ultimately it must be combined with the rescinding of the surrendering of Sovereign power to Europe. Seeing as it would kick up quite a brouhaha to remove Britain from judicial control of Europe, you may as well remove Britain from the other economic and legislative oversight they have over us. In for a penny, in for a pound. As nice as that may sound, it won't happen whilst there is a Coalition Government, and is only a possibility under a strong Tory majority Government. Not only does that look unlikely given the rate of economic recovery, but even with it, is there the appetite for such a drastic move? So for now at least, it appears that moaning about it is the best we can do. We'll leave the referendum on Europe for another day...

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