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Is the scare of Human Rights a Bogus Boo?

PiyaBy Piya Mayenin ::  In recent years the use of Human Rights as a defence for Immigrants and foreign Criminals in removal and deportation cases has been at the forefront of criticism. Surrounding the controversy has been a curtailing, repealing of the Human Rights Act 1998 (HRA 1998), and replacing it with a UK Bill of Rights. We have seen the rights of prisoners to vote discussed and the courts dealing of radical cleric Abu Qatada has caused equal controversy.  We have heard discussions from academics and politicians and other groups on human rights. Sometimes it appears that HRA 1998 was a problem and other times it was the European Court of Human Rights (ECtHR). However a thorough exploration of Human Rights; how it came about, how it works and its impact and effect in the UK may shed light into the adequacy of some concerns of opponents of the way human rights via the HRA 1998, is allowing bad people to get away with bad things.

History and Workings
International human rights have long played a part in Immigration and other areas concerning human rights, before the Human Rights Act. The Universal Declaration of Human Rights (UDHR) for instance, and the European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms)

The sources of European law in the UK are
the Treaties ( being the primary source that has to be incorporated into English law)
The Jurisprudence of the European Court of Justice. (ECJ)

Regulations and directives are secondary legislation made under the primary law or treaties. This also provides for the making of Decisions, Recommendations and Opinions. Of these, decisions are legally binding and bind only those whom it addresses. The ECJ has been highly influential in developing the law too in substantive areas and principles of EC law.

The first Treaty of Rome 1957 had the idea of creating a common market for the original six signatories. This common market required not only the abolition of custom duties and quotas for goods passing between the six original nations signed up  but also recognising that the population of the member states had a right to share directly in the benefit of the new system.

It was clear from the onset that it was more than a free trade zone and the preamble of the treaty was ‘To lay foundations of an ever closer union among the peoples of Europe’. It created supra national institutes including the ECJ demanding ‘a new legal order of international law for the benefit of which have limited their sovereign rights, albeit within limited fields, and the subjects of which compromise not only Member states but also their nationals.’

Subsequent treaties merged institutions, signed up other member states including the UK in 1973, and developed the single market.  The Treaty on European Union 1992 (The Maastricht Treaty), renamed the Treaty of Rome and made some important amendments and set out union objectives.

Importantly the Union also undertook to expressly respect fundamental human rights as guaranteed by the European Convention. It is still correct to talk of EC legislation as it is only in relation to community institutions powers to create rights with direct effect.

The Amsterdam treaty incorporated the TEU social chapter that Britain had previously opted out of. The treaty of Nice made changes to the institutions of the Community with a view to accommodating enlargement.

In line with International law, a political organ, the Council of Europe (founded in 1949 and has 47 member states with 820 million citizens) was given the power to supervise the democracy between nations in areas of legal standards.  The organisation is an independent body, and is not controlled by the European Union.

Strasbourg & Luxembourg
The ECJ, being the highest court in the European Union are tasked with interpreting EU law and ensuring its equal application across all EU member states, is based in Luxembourg. The ECtHR , being supranational or international court, established by the ECHR, hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the convention and its protocols. It is based in Strasbourg, France

As community law overrides conflicting national laws, directly effective EC law was and can always be used as a defence to any civil claim criminal prosecution or tax claim that is based on national law. National courts must provide a sufficient remedy to protect EC rights.

With history and geography covered now we can look at the mechanism and function of HRA 1998.

The Human Rights Act domesticated the ECHR and came in force in 2000. One immediate effect of the Human Rights Act 1998 was to make it possible for litigants in the UK to rely on the convention rights, without the delay and expense of going to ECtHR, all the way in Strasbourg.

Higher Law
The Human Rights Act is a higher law.  Firstly, it is expressed in broad ethical terms unlike other specific or technical legislation. Secondly it is pervasive throughout all laws concerning the convention, and; thirdly the judges have a duty of interpreting domestic law in line with these broad principles. I e ….. So far as it is possible to do so, primary legislation and secondary legislation must be read and given effect in a way which is compatible with convention rights. This principle applies to whether a party is private or public.

In simple words HRA 1998 made it easier for individuals asserting their convention rights against being oppressed, arbitrarily punished or discriminated against regardless of whether they are a bad person or good. (Of course assessing good and bad probably needs a separate area of discussion). It is a mechanism which attempts to restrains authority and abuse of justice and areas include Housing, Employment, Immigration, Crime and Prison Law. It also alerted all public bodies, including local authorities, courts etc. to their duties in upholding individual rights when dealing with them

Parliamentary Sovereignty
The emerging confusion and fear surrounding the HRA 1998 and the threat to sovereignty of Parliament because of protocol 11 of the convention, has always been a contention and has in recent years caused the public to dis-unite with some calling for a repeal and others for a reform and others even wanted a opt out of EU because of rights rendered to individuals by virtue of the HRA 1998 and the higher status it has above all other legislation.

Let us look at this deeper. Where domestic law is still irreconcilable with EC law or where judges are unable to give the same effect by a purposive interpretation of domestic law because of the clear words used by the legislator, judges are empowered to give a declaration of incompatibility. Courts do not have the power to strike down an Act of Parliament and that is reflected in S 3 (2) of HRA 1998 which restricts the power of judges by asserting that judges cannot overturn parliament’s intention and human rights law thus cannot overturn Acts of Parliament

The usual procedure should be for the Act to be amended by a fast track procedure in parliament by a remedial order. However, the remedial order is optional. The HRA 1998 does not place an obligation for Ministers to do anything after an Act of Parliament has been declared incompatible with EC law. The road to Strasbourg is not closed if government does not take adequate steps to put matters right.

Let me remind you that prisoner rights to vote are contained in the convention and not the Human Rights Act! This means that with HRA repealed we are still subject to the convention law. This would be the case if a British Bill of Rights was to replace HRA 1998. So I guess the question is now, do we want out of convention law? This will make us the only country outside the convention and outside the Council of Europe that Sir Winston set up after World War 2 with a view to avoiding wars and human atrocities. It might be noted again, the convention is not the EU.  It does not deal with the freedom of movement of capital and labour.

Without the HRA 1998 we would end up with endless breaches of EC convention leading us further to withdrawal. In light of the ever closer global economy with strife’s and differences that are clearly leading to war after war and resulting human atrocities, would be we better of outside the convention?

Bill of Rights
Fear of HRA has initiated a debate on whether there should a Bill of Rights in the UK maybe replacing it. Academic debates around this have highlighted that a Bill of Rights was considered before in the UK and in fact the Human Rights Act was a minimalistic way of ensuring a Bill of Rights for the people of UK by Tony Blair’s government. Replacing HRA 998 with a British Bill of Rights is questionable and is at odd with the need for changing terminology to secure xenophobic tendencies of some who are infuriated by people claiming human rights when they aren’t even British!. Surely that was not the purpose of human rights. Those that do not have those tendencies ought to consider that duplicating HRA 1998 with Bill of Rights  is unnecessary and adding further rights that the HRA 1998 is not what the current conservative part of the coalition government are advocating. In any case, it would not free UK of its obligations to convention rights of individuals.

We need and intellectual look at this and not a political look. This writer does propose that politics cease as it is the people’s choice through their political views that parliament reflect on and pass laws but advocates an objective analysis free of political aims of the government.

The cohesion in the international community through treaties came about by the lobbying of people to ensure a safety and value for human rights in a peaceful and humane existence on this planet. This right is for every individual regardless race sex or political view.

The Brighton declaration in April 2012 where the reform of the ECtHR was discussed highlighted the point of subsidiarity there was a proposal to have HR act in all members’ state. Reality is that 47 countries have their own versions of laws to domesticate the convention and that serves in itself to reduce work the ECtHR. Subsidiarity is rendered by the HRA 1998 in UK.  The lower number of cases being taken to the ECtHR both from EU countries and the UK is showing the effectiveness of the ECtHR and other countries that are taking on board the values of human rights of individuals.
The UK foreign minister concerned with people that are denied their Human Rights all over the world and advocates human rights and democracy through its Human Rights and Democracy Program, on the other hand wants to deny the very people of the land it governs those same rights is a shame.  Once people can see through this unintelligible position they can assess what the HRA 1998 has given us and this writer is of the opinion that it as the best piece of legislation this land has ever known. A piece of legislation that asserts right of individuals. S o please stop making HRA 1998 a bogus boo! ( a bad creature only in the imagination).