Not Saussure

November 16, 2006

Human Rights and Myths

Filed under: civil liberties, Spin — notsaussure @ 7:02 pm

One accusation frequently levelled against the Human Rights Act is that it allows all manner of claims for spurious rights to be upheld. An example that’s frequently cited, most recently in today’s Telegraph by Daniel Hannan, is that it has been

snatched at … by prisoners who want to receive pornography in their cells (on grounds of “freedom of expression”)

The complaint has also been made by Michael Howard a couple of years ago; while still leader of the Conservative Party he told an audience in Stafford that

It was convicted mass murderer Dennis Nilsen who was able to argue that his ‘right to information and freedom of expression’ entitled him to receive hard-core pornography in prison. [This case was] pursued under the Human Rights Act.

And David Davis made the same point at about the same time, complaining in The Spectatorabout

The serial murderer who successfully demanded the delivery of hard-core pornography to his prison cell because of his ‘right to information.’

It’s perhaps worth explaining that, while such an application was certainly made, it got nowhere (contrary to what Mr Davis seems to have thought). As the Department for Constitutional Affairs’ Review of the Implementation of the Human Rights Act, published last June, explains, in its section Myths and misperceptions,

Dennis Nilsen was sentenced to life in prison in 1983 for multiple murders. In an application for judicial review in 2001, he sought inter alia to challenge a decision of the Prisoner Governor, under the Prison Rules, to deny him access to a book containing gay artwork and depictions of male nudity, and uncensored access to a mainstream top-shelf gay magazine. He alleged that the decision constituted “inhuman or degrading treatment” contrary to Article 3 of the Convention rights, or in the alternative was discrimination against gay men under Article 14 of the Convention rights when read with Article 3.

Dennis Nilsen’s application was refused by the single judge at the permission stage. He did not establish that there was any arguable case that a breach of his human rights had occurred, nor that the prison’s rules were discriminatory. He also failed to receive any greater access to such materials as a result. The failure of his application at the first hurdle was not widely reported, nor his further failure on renewal. On the contrary, the case is now often cited as the leading example of a bad decision made as a result of the Human Rights Act, with the Shadow Home Secretary himself asserting that Dennis Nilsen had been able to obtain hard-core pornography in prison by citing his “right to information and freedom of expression” under the Act.

Michael Howard at least had the sense to say Nilsen was ‘able to argue that’ the HRA gave him an entitlement, without committing himself to saying anything about how successful the argument proved, though neither he nor Mr Davis, nor Daniel Hannan, got the details of the application right.

While obviously I don’t expect politicians of any party to know what they’re talking about half the time, it’s a bit much that a serious paper with so excellent a legal editor as Joshua Rosenburg lets this sort of ill-informed nonsense through.

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  1. And the point you’re actually making is?

    Comment by jameshigham — November 17, 2006 @ 11:30 am

  2. That people really should know better than to keep on referring to this, with the implication — with the actual statement in terms, in the case of Mr Davis’ article — that the Human Rights Act gave Nilsen (or anyone else) the right to receive pornography in his prison cell.

    Nilsen, possibly having taken advice from the same people who advised Michael Howard’s speechwriters, thought that the HRA gave him a right to pornography and the courts disabused of this notion at his initial application.

    Unless people are complaining that the courts should have upheld his notional right to pornography, I don’t see why his unsuccessful legal argument keeps on getting referred to.

    Comment by notsaussure — November 17, 2006 @ 4:24 pm

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