Not Saussure

February 11, 2007

Lord Falconer and human rights — deja vu

Filed under: civil liberties, Politics — notsaussure @ 4:49 pm

I thought something had gone wrong with the BBC website yesterday, when one of the top politics stories was about a Blitz on human rights ‘nonsense’

A more “common sense” approach to human rights laws is needed by public bodies who sometimes misinterpret them, the Lord Chancellor is to say.

Lord Falconer has said the importance of the Human Rights Act has been “clouded by nonsense”. […]

Lord Falconer said that if rulings do not make common sense, then the Act has been wrongly interpreted.

He will give a speech later at Manchester University, to set out a campaign to explain the Act to public rights workers.

I was sure that not only had I read this before but that I’d blogged about it, and, sure enough, I had.

He gave a different speech in Manchester, but essentially it covers the same ground as the one he gave at the end of October (even including an apology for being unable to get to the event the last time he was supposed to speak there; clearly not the most reliable of guests), explaining that the European Convention on Human Rights allows most of the rights therein contained to be constrained, so long as it’s proportionate to the good that’s thus achieved. Some of them are absolute — Nick Cohen, the decent anti-fascist, must be disappointed that governments aren’t allowed to torture people no matter how good an idea it may seem at the time — but most are qualified in the sense that the government may interfere with them but only to the extent necessary to maintain public protection and secure others’ rights. And, to my mind crucially, the Convention gives the courts, rather than John Reid, the final say in deciding whether what John Reid wants to do is reasonable and proportionate.

He knocks on the head, yet again, a few myths about the Human Rights Act — no, it doesn’t give criminals in roof-top sieges the ‘right’ to Kentucky Fried Chicken, though the police negotiators trying to resolve such situations peacefully and safely may sometimes think that meeting demands for food will help get the chaps down, and no, it doesn’t give prisoners the right to receive hard-core gay porn while in prison, as the judge explained to Dennis Nielsen when he sought a judicial review to establish that it did. Sometimes it clearly does get misapplied by public bodies, until the courts put them right, but that’s an argument for better trained staff rather than scrapping altogether some pretty basic protections.

For they are all pretty basic. As summarised by Lord Falconer:

The right to life; not to be tortured; the prohibition of slavery and forced labour; the right to liberty; to a fair trial; to not be punished without legal authority; the right to respect for private and family life; to freedom of thought; of expression; of assembly; the right to marry; and the right to not be discriminated against.

And this, I think, is the problem with the Conservatives’ talk of scrapping Human Rights Act — and, if they’re serious about it, withdrawing from the ECHR altogether, and replacing it with a Charter of British Rights or whatever they’re thinking of calling it. It would, in effect, contain pretty much the same provisions only — one imagines — with a proviso that they can be overridden by government rather more readily than can they be at the moment. I may be mistaken, but I don’t quite see what difference the proposals will otherwise make.

One might say that British judges will interpret them differently, once freed from Strasbourg’s jurisdiction, but I really wouldn’t bet on it. On the contrary; given that they’ve been using the Strasbourg interpretations up to now, I’d have thought that, on being asked to interpret an identical or almost identical ‘British’ (as opposed to ‘European’) right, they’ll interpret it in pretty much the same way. The only difference, as I say, is that it’ll probably be easier for governments to ignore them.

Interestingly, and with a certain bitter irony, Lord Falconer gives, as an example of a case where it’s difficult (and contentious) to balance someone’s Convention rights against the public interest,

the Afghan hijacker who cannot be sent back home because there is a strong likelihood that they will be tortured or worse on their return? One response would be to send them back regardless and consign them to their fates. In order to deter hijacking and international terrorism, one might argue, we must deport them. Why should they be allowed to stay, and potentially pose a risk to public safety? Why should their human rights seemingly outweigh the needs of the community? Understandable concerns.

I say it’s interesting because he makes it pretty clear he agrees the hijackers should stay, while it’s these exact same chaps, and the Chahal judgment (1996 and thus pre-this government, let alone pre-Human Rights Act, it should be recalled) which protects them, that cause Dr Reid and Tony Blair such annoyance.

A slight sidetrack, but just for the sake of clarification, if you follow the link to Dr Reid’s statement, you’ll see he’s a bit economical with the truth — in the literal meaning of the phrase, in that he doesn’t tell the whole story — when he says

The 1996 Chahal case found that the UK Government could not consider the protection of the public as a balancing factor when arguing the case for the deportation of a dangerous person. We believe that this goes against the fundamental principle in the Human Rights Act that individual and collective rights can and should be balanced against each other. We are working, therefore, with our partners in Europe to challenge this as vigorously as possible.

The bit of the truth he economically omitted was that the UK Government most certainly can consider the protection of the public as a balancing factor, only not when the individual right against which they seek to balance it is the right not to be tortured, one of the few convention rights that is absolute — that’s what Chahal is about. And I, for one, would be very wary indeed of giving this or any other government the right — or, to look at it another way, placing them under the obligation — to balance an individual’s right not to be tortured with the collective good that might come from so doing.

The specific reference to Chahal is interesting, then, because Lord Falconer seems to be putting himself — and I’m sure it’s not accidental — on the opposite side to the Home Secretary in what the latter thinks is government policy (or, at least, that’s what he told the Commons, in terms, last July. It’s bitterly ironic, though, to read Lord Falconer defending — quite rightly, to my mind — a ban on deporting people to Afghanistan on the grounds that

Human Rights are the values we live by. Human rights are the values we must stick by even when confronted by enormously difficult situations such as this. If our society is to be true to the principle and the practice of human rights – we must make that difficult decision. It is very, very difficult – but the correct decision must be grounded in common sense.

[Society must decide – and I don’t believe we are living in a society that would accept sending a man to his death].

(the square brackets are in the original — dunno what they indicate in this particular context) a couple of days after reading this, via Chicken Yoghurt:

‘Mr Tokhi and his family had long feared this would happen. He repeatedly pleaded while seeking asylum in Britain that his life was in danger in a sectarian and political blood feud back home . But the Home Secretary at the time decided that Afghanistan was now a safe place thanks to the intervention of Britain and the US, and Mr Tokhi was sent back to his home, and his death, after the appeal process failed.’

(report continues here)

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7 Comments »

  1. I think we might as well face up to the fact that the greater percentage of the British public doesn’t give a damn if Mr Tokhi and thousands like him die like that, and a significant majority would probably be happy to fire the fatal shot themselves.

    Comment by rainmanlite — February 11, 2007 @ 6:36 pm

  2. Didn’t this bunch of idiots get us in this mess in the first place.

    Comment by Disillusioned & Bored — February 11, 2007 @ 7:41 pm

  3. Woah, I thought I was the only person in Britian who saw the benefits of the Human Rights Act…..I am happy!

    Comment by MattUK — February 11, 2007 @ 10:46 pm

  4. I wasn’t aware there was a mess – all I’ve seen is a lot of media fluff designed to keep their readership pissed off and stupid.

    In fact, it occurs to me that the Daily Mail and Tennent’s Super have a lot in common.

    Maybe we should just let Rupert Murdoch decide what’s in our best interests, I’m sure he’d be glad to act as an independent arbitrator/tyrannical overlord.

    Comment by Flying Rodent — February 11, 2007 @ 11:02 pm

  5. I got a Labour flyer through the door on saturday with the Tessa beaming and the headline
    “Sorry We Missed You”
    I didn’t bother to read further, but have written to them to give them advice from an ex sub-editor that I think they’ve misprinted the headline; sureley it was meant to be
    “Sorry We Misled You”

    Comment by piers — February 12, 2007 @ 11:43 am

  6. Thanks for an excellent post. As an ex-lawyer I’ve long been appalled at the way the Human Rights Act, one of this fundamentally disappointing government’s few really great achievements, is so regularly traduced by the people who created it in the first place. The first instinct of Labour politicians keen to cover their arses is to blame the HRA for anything that goes wrong, the second is to blame Europe (see David Milliband and the turkey to Hungary scandal) – and then they wonder why the public can’t see the benefits of either.

    Comment by Unpremeditated — February 12, 2007 @ 4:05 pm

  7. […] blitz on Human Rights nonsense February 13th, 2007 Not Saussure has an excellent article on Falconer’s recent comments in the […]

    Pingback by Lord Falconer’s blitz on Human Rights nonsense « UK Liberty — February 13, 2007 @ 12:49 pm


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