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...

The Indefinite Articles

True to form I am joining a debate just as the dead donkey is having the last of its once lustrous flanks flogged from it (are donkeys ever lustrous?). As you may have guessed from my cunning title, today's post centres on Articles 8 and 10 of the European Convention on Human Rights. You may, though, have worked it out from my subtle pictures on the right. I thought about using that over-produced picture of Miss Imogen Thomas strutting to court in a flattering but staid, high neckline blue dress. However, after some really extensive research (this is what I have been doing for the last 2 weeks), I thought this one offered more to flesh out the post, artistically speaking.

So, I guess it is time to vent my feelings on the great 'public interest' debate. First and foremost it makes sense to make the obvious distinction between "in the public interest" and "of interest to the public". The former I shall take to mean knowledge that is due to the public as citizens and taxpayers because it has the ability to affect them, the services and organisations they fund, and their lives as players in British democracy. Here we are talking about nefarious activities of Members of Parliament, the head of the BBC running a sleaze campaign against ITV, Liam Fox having an affair with an executive at BAE Systems whilst considering a tender for an MOD contract. That sort of thing; and I stress, all hopefully imaginary.

Now as we see from the last example, in particular, the lines can easily blur between "in the public interest" and "of interest to the public". This is because the last one is about sex, and sex sells. Yes, this is what is "of interest to the public" - anything that gets printed in Hello!, OK or any number of other publications in the UK and abroad. In short, things the public will pay to read about and see pictures of.

You may point out that even broadsheet newspapers print a mix of the two, and you would be right. We should know about the Foreign Office talks with Syria, that's "in the public interest", but we simply like knowing about the old tortoise that got stolen but escaped and walked 200 miles home over the course of a year. That is a "public interest" story, in that it is simply something we'd like to know. It lightens the paper and provides some contrast. We didn't need to know it, nor have any particular right to it, it having no bearing on our lives as citizens. Incidentally, I made that one up too, but if your tortoise really is that heroic and navigationally astute, congrats.

So we know what at least I think is the difference between the two types of public interest. This is important because it seems to be this distinction upon which judges base the fad of today, the injunction, or even super injunction. It all boils down to readings of the ECHR's articles 8 and 10. Now they are more focussed, as you can read, on when Governments can infringe said rights, rather than when other members of society can, but as with much law, there is always room for interpretation. Herein lies the crux of the matter. Does Article 8, "the right to a private life" as it is bandied about, trump Article 10, "the right to freedom of expression" or vice-versa?

So here's my take. If something is "in the public interest", it is clearly defined that it may be made public, where it "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." So, if the head of MI5 is sleeping with the the head of Mossad, or an elected representative is illegally paying their partner to rent their own home, it is clear cut.

Where it gets hazy for people is the "of interest to the public" area, but I cannot see why. It's all rather simple, for my money. If you choose to live your life in the public eye and thereby make money from the associated publicity you have engaged in a transactional relationship. You pose for pictures in magazines, do interviews; you get paid. Companies sponsor you to advertise their stuff because you have high exposure. You make your money this way. The public are interested in you, and you get paid because of their interest.

So where does one draw the line in terms of finding out each and every detail about your life? One glance at modern popular media tells us people will read about anything a "celebrity" does? Whilst I can understand you may not want everyone to see you looking crap with a hangover on holiday, you have to take the rough with the smooth. If you do it in public, it will possibly be caught on camera. I sympathise with those who get their boobies plastered worldwide care of 100 mile telescopic lenses whilst trying to subtly rearrange a bikini on a boat, but for the most part that's the business they signed up to. It's not "in the public interest" but I think it's all fair game as part of your contract with the people who now think of your public antics as interesting.

So, where does the remit of the telescopic lens stop? I think it invasive and intrusive to go around tapping phones, trying to entrap people, or taking photos of people through the windows of their own home. That stuff should rightfully be all illegal, and any newsworthy stuff garnered that way should be barred as having breached Article 8. So, that's stuff that may well be "of interest to the public" but to which they have no right. So, it shouldn't be gathered, and if it is and someone tries to publish it, an injunction here is totally justified.

However, Article 8 actually says "everyone has the right to respect for his private and family life, his home and his correspondence". The key part is "respect". It is not a carte blanche. If you live your life in the public eye and choose to show no respect yourself for your private and family life, you cannot then hide behind the same article which you have just flouted. That is if you, a married superstar footballer father of 3, decide to shag a publicity-seeking bimbo without the express permission of your wife, you're on pretty shaky ground. Likewise if you, a multi-millionaire motorsport head honcho decide to engage the services of some ladies of dubious reputation to play out some curious sexual peccadillo, you have breached you own privacy.

You have let into your 'circle of trust' some dodgy characters. If said bimbo/hooker decides to ring up the Sun and tell all for £50,000, well my friend, that is your fault. Article 8 only allows for the right to respect for family and private life, a respect you have chosen to disregard, unless in breach of others' rights and freedoms. Now as little as you care for the bimbo/lady of the night, they have a right to freedom of expression under Article 10. They have done nothing to invalidate their right to freedom of expression. As long as what the say is true and not libellous, they have a right to say it, and anyone to whom they say it has a right to repeat or publish it.

All of the articles within the ECHR have similar caveats. Those who drew them up no doubt knew there would be times when two articles would be drawn against each other. There is no natural hierarchy of the articles laid down; none has natural precedence over another. Some may try to argue that the clause in Article 10 caveating free speech with the "protection of the reputation or rights of others" justifies gagging injunctions due to Article 8. However, common sense must be applied in this situation. Clearly Article 10 trumps Article 8 here: those hiding behind Article 8 have themselves shown no respect for their own privacy; those invoking Article 10 have said nothing untrue.

It is madness to be able to hide any wrongdoing behind the right to the private life you chose to live in public and the right to a family life for which you show nothing higher than contempt yourself. Simply put, if you choose to live a public life you must accept the concomitant higher level of public scrutiny. You still get your private life, and it should be protected (but will be inevitably less private than my private life as nobody takes photos of me going to the shops, so yours is probably now just what you do in your home and that of your friends and families), but be careful with whom you share it. You cannot ask only for the good publicity either - the only way to do that is to only do good things. Perhaps that is a lesson young aspiring famous wannabes should learn before launching themselves into the limelight.

I'm quite glad someone did something about this ridiculous situation, and am amused at those who want to sue Twitter for what its users have written. It is as farcical as suing your school for what you think little Johnny Briggs wrote about you on the wall of the boys' loos. I wish them luck trying to track down those tens of thousands of users who can easily be anonymous who have breached these injunctions. I'm not convinced this is what the authors of the 1668-1669 Bill of Rights had in mind when their Bill allowed John Hemming MP to name Ryan Giggs under Parliamentary Privilege (oops, add me to the list of breachers), but it got an important debate going. I suppose the moral of the story is if people knowing you are a naughty boy might be bad for you, don't be a naughty boy.

Human Rights or Wrongs? Part 1

Right then boys and girls, a quickie for you all before I go native. No, as you may imagine from my latest, I am not converting, merely assuming the state for a while. Work is sending me off to the back of beyond, which it turns out is even more remote than deepest, darkest, from where I have been keeping both of you occupied these last two weeks. Yes, I am going away from internet signal. Before you ask (they never ask, sigh) I'm not off to Egypt in search of the mythical internet circuit breaker. No, I know my limits; I've seen the Temple of Doom. If that's what Johnny Foreigner does to defend the recipe for monkey brain soup, I have no desire to search for the secret broadband on/off switch. I am no Indiana Jones, though I think I look quite dashing in a hat/stubble combo. Not great with a whip or hieroglyphics though, so I'll just amble out into the desert to where I am told and be done with it.

So a couple of clues so far. It might be something to do with human rights. Yes. It might be the first of many. Yes, if by many you mean two. The cunning lead-in point from current affairs is the demobilisation of 'the internet' (I have no idea how this might happen - I have to pay a 12 year old to log me on to this site) by the Egyptian Government in an attempt to disrupt the command and communication set-up of the rioters. Yes.

Now these are obviously organised rioters, an oxymoronic state to be in if ever I heard one, because I thought the idea of rioting was anarchy, which is no comfortable bedfellow of organisation. However, it turns out in the modern world, we all have to make sacrifices. So to protest at state control and a surveillance society we post all our most intimate details, photos and inside leg measurements on public forums, and then use said forums/repositories of intelligence to organise stands against 'the man'. As they say, if you're not confused, you haven't totally understood what's going on.

Anyway, that wasn't really my point, just a lead-in that got away. My point was since when did your human rights include access to the internet? Now I will say some more things, probably less flippantly about human rights and the general utopian bilge than spouts from the European Court of Human Rights, but today is just a taster. I might even do a little research in the meantime. But for now…

'Human Rights' as a concept that is as old as the hills. Read a little of Aristotle's Nichomachean Ethics and you see people were concerned with the proper conduct of man well before there were British milkmen, let alone their twinkling eyes. And these are just the first lot who wrote any of it down that we could find (though that may do a little disservice to Aristotle, Plato and pals). My point is that human rights has evolved over many hundreds of years, but is essentially a study in how man should treat man. It is about ethics - as fascinating and deeply important subject as one who is interested in the progression of mankind could hope to find.

However, it has become a dirty thing in the modern world - the last refuge of the guilty man. This I shall come onto in another post, but the more astute of you probably know where I am going with it. Rights, as I have blogged about many times before, are now ten-a-penny apparently (here for example). Human rights should be a representation of how man should treat each other in the most basic way. We are talking rights to liberty, life, involvement in the rule of law which governs his way of life, freedom from tyranny. Essentially, all the good stuff you see the heroes of the downtrodden valiantly fighting for against the evil, oppressive powers in the epic films. Whichever philosopher's bandwagon you jump onto - Hume's, Locke's, Aristotle's, Kant's, you are signing up to a basic philosophy of human rights. What it has evolved into is the product of arrogant but ignorant men extrapolating the works of geniuses.

The situation now: A mobile phone is a human right. Or even a 'basic human right'. So is access to the internet. These are the big two I'm going to focus on because a) it is late and I want to go bedwards, and b) they are wonderfully typical of the distortion of a once noble cause. So, get you seeing how this is all pump, and I get to go to bed safe in the knowledge you realise all the other new world 'rights' are a load of old hoopla too.

Now the push for this lunacy is unfortunately widespread. 4 out of 5 of us morons (the human race, of rights fame) apparently think internet access is a human right. Check this article out if you don't believe me (I know you didn't all vote, but it was a pretty big straw poll - here). The UN reckons it is. France's High Court agrees. The list goes on. In justifying this madness the perhaps biased Secretary-General of the International Telecommunication Union commented "the right to communicate cannot be ignored". No - good point Dr Flawed Logic. The basic human right you are thinking of is the right to free speech, not the right to 2 megabyte streaming porno. It is rather like thinking the right to freedom of movement is giving everyone a G6 (it's a pretty big, expensive plane) to maximise their movement, and when reading the Constitution of the United States' granting of man's right of the pursuit of happiness thinking that he can therefore rape, pillage and inject heroine into his retinas as long as it makes him happy.

So, before I go any further on human rights, we need to go backwards. Too much balderdash is spewed in the name of human rights by people who are as far from understanding the concept of a basic human right as Our Tony is from understanding he might have been wrong once or twice when in office. Human rights are not dependent on the enrichment or development of technology in society - they are about the basic codification of moral behaviour. Rights are life, love and liberty, not BT broadband, flat screen TVs and more kids than a kangaroo breeding facility. Human wrongs… I'm just getting started.