Reflections from “a member of the public” on 60 years of the European Convention on Human Rights and what the future holds

Guest Blog: Paul Langton, winner of BIHR’s ECHR at 60 Blog Competition, who won a place at our recent conference on the future of the ECHR. During the political “Question-Time” panel, Paul identified himself as a “member of the public”, much to the audience’s amusement. Here Paul reflects on the event and the wider debates about the future of human rights protection in the UK

On Tuesday 3 September I had the privilege of attending a conference organised by the British Institute of Human Rights and the Law Society celebrating 60 years of the European Convention and which also asked “what does the future hold?” It was exciting to participate in this historic event which included contributions from politicians, academics, representatives from BIHR and the Law Society, including a keynote speech from the former European Court President, Sir Nicolas Bratza.

Celebration however was tempered with caution. Sir Nicolas spoke of the myths perpetuated about the Convention. Some out of ignorance, some out of malice but they contribute to a hostility that seeks to undermine the UK’s participation in the Court, the Convention and the Council of Europe. Following the event I did a quick survey of the media and for the most part – aside from those coordinated by BIHR – he anniversary was overlooked, apart from a particularly caustic piece in the Daily Mail. To reinforce the point further the following day in the House of Commons public gallery I was disheartened, but not surprised, to hear two Conservative MP’s refer disparagingly to the Human Rights Act in the same sentence as “asylum backlog”, “massive net immigration” and “uncontrolled transition” during a debate on the UK Border Force.

“…the majority of members find it hard to persuade themselves that public perceptions are likely to change in any substantial way as a result, particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media…” A UK Bill of Rights? The Choice Before Us (para 12.8), Commission on a Bill of Rights, vol 1, Dec 2012

A few days after the conference and I am left thinking that discussions about the European Convention should not be framed in terms of parliamentary sovereignty, the rule of law or our relationship with Europe. Important as these issues may be they are red herrings – and do not get to the heart of the matter.

The Convention is a challenging instrument because it asks us to face fundamental questions: To what extent are we prepared to uphold and defend an individual’s human rights and are we prepared for the moral and ethical implications if we don’t? It forces us to face squarely the discomfort in upholding those rights of an individual who may not offer us the same courtesy. Dangerous and malevolent people can be domestic citizens or entrants into the country. However should their fundamental human rights be violated because they are such a threat or because they have committed a heinous crime? These are not new questions. The London Cage established after World War Two has been documented in the National Archives, and the International Committee of the Red Cross, as the United Kingdom’s clandestine torture centre both during and after the war. I confess, to some shame, I am conflicted between a revulsion of what happened at the Cage and a sense, albeit a guilty one, that its occupants got their just desserts for participating in some of the most appalling crimes in history. And perhaps that is the weakness – I am seeking to resolve this inner dilemma by attempting to reconcile how I feel about these events when what is required is the dispassionate analysis and judgement by Convention law. Today, the Cage would be outlawed under the Convention. However the UK faces the same quandary as to what is “right”, every time it seeks to deport someone to a country where they are likely to be tortured and killed.

The possibility of votes for prisoners has proved incredibly controversial. The ruling by the European Court in Hirst v the United Kingdom (No 2) in 2005 on removing the “blanket ban” has predictably continued to receive a hostile reaction in the media and on the floor of the Commons. “If you break the law you cannot make the law” David Davis stated in a Parliamentary debate in 2011. “Votes for Villains” cried the Mirror in May 2012. “The very soul of our democracy’s at stake” exclaimed the Daily Mail in October the same year. Such reactions fail to advance the debate. The blog by Conservative MP Claire Perry in 2010 (who is cautious about the reach of the European Court) about her positive experience at a mock hustings in HMP Erlstoke, and the successful work by ex-offender led charity “User Voice” on Prison Councils are two examples of how prisoners were willing to engage in a democratic process and are able to benefit from it.

It is disappointing to think that Members of Parliament have made more of a fuss over this political hot potato, than the recent inspection at HMP Bronzefield by Chief Inspector of Prisons, Nick Hardwick. The inspection from this April, following an earlier one in 2010, reported that a vulnerable female prisoner had been kept in segregation for over five years to the point that her treatment was described by Hardwick as “cruel, inhumane and degrading”. These are words that were carefully chosen. As Hardwick himself stated “Much of this was outside the prison’s direct control and required a national strategy for meeting the needs of these very complex women – as exists in the male estate”. A deficient and unequal national policy present in the prison system that has been operating since at least 2010, and which led to criticisms couched in Convention language, suggests that these are the matters that Parliamentarians ought to lend their debating energies to.

Arguments abound that the European Court has strayed from its initial vision into areas that are best served by the domestic courts. The Convention was designed to prevent the atrocities of early Twentith Century Europe ever occurring again and by ruling in domestic cases brought before it by individuals it is suggested that it is attempting to micromanage member states of the Council of Europe, that its rulings are arbitrary, focus on trivial matters and that it undermines national sovereignty. These would be valid arguments if domestic law was full and complete, if parliamentary legislation always struck the right balance between state interference and personal autonomy and if representatives of the state exercised their powers without fault.

Sadly this is not always the case. The most withering criticisms made by the European Court is that there is “no remedy in law” when referring to domestic legislation, followed by the observation that powers are “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”. The UK, as a respondent state, has been subject to both these criticisms in Court cases – and rightly so. If anything should be learned from world history it is the lesson that it is the minor infringements of the rights of individuals and communities that lead to greater injustices.

Sir Nicholas called on delegates to “rekindle the fire” and in its 60th year the Convention is likely to come even under more criticism than ever before. How that fire is rekindled is a challenge to all. Attendance at the BIHR’s Human Rights Tour, a quick note to a Member of Parliament, signing up to a human rights blog or newsletter (BIHR’s are here)  – these are all beginning steps that can help to rekindle that fire. The temptation is to allow Parliamentarians to make the choices for us or to think that the Convention has lasted sixty years – surely it could survive sixty more? However, I conclude with a thought which sprung from an opening speech at the conference by BIHR’s chair, Francesa Klug. She reminded us the Convention was “hard to achieve but would be easy to destroy”. It is a solemn warning. The UK was one of the Conventions architects – it would be a bitter irony if we were the first to begin its dismantling.

60 years of the European Convention on Human Rights – what does the future hold?

Sadaf Etemadi, interning with BIHR as part of our Queen Mary University London Law School summer placement scheme, shares her highlights from BIHR’s ECHR 60th Anniversary Conference, held with the Law Society on 3 September 2013

The 3 of September marked the 60th anniversary of the European Convention on Human Rights. The British Institute of Human Rights (BIHR) marked this milestone by holding a spectacular conference, with the Law Society, exploring the impact of the ECHR and its future in the UK.

The event began with a powerful speech from Sir Nicholas Bratza, BIHR’s president, and former president of the European Court of Human Rights (ECtHR). Sir Nicolas reminded us of the UK’s enthusiasm in Sir Nicolas Bratzaembracing the Human Rights in 1998, which brought the ECHR rights into our law. Yet fifteen years on the Act has become the source of sensationalist media headlines, misrepresented news stories and negative and misinformed political discourse, rather than celebrating the extraordinary changes it has brought to the lives of 820 million people across Europe. The inspiring address was met with extended applause, the delegates refusing to let Sir Nicolas take his seat too soon!

This was followed by an insightful panel of distinguished academics and lawyers exploring how the convention has impacted legal systems outside the UK. Professor Phillip Leach began by highlighting how invaluable the ECtHR is in ending deliberate state evasion of justice and providing much-needed accountability. He spoke about how the ECHR system provides a vital forum for many disenfranchised people to have a voice, shine a spotlight on abuses and seek justice. For example, the ECHR meant the practice of forced disappearances came under the scrutiny of the court, compelling states to dispense with the practice and challenging impunity in countries such as Turkey and Russia.
Professor Fiona de Loundras’ provided a comparative analysis of the UK and Ireland’s attitude and traditions towards guaranteeing and interpreting human rights. This was directly relevant to current discussions calling for a UK Bill of Rights and the concerns over judicial power under the Human Rights Act. Loundras noted, the rights guaranteed by the Irish Constitution mirror the rights outlined by the ECHR, they are understood as legal constitutional rights as opposed to political rights. The constitutional importance of these rights allows for the judiciary to strike down incompatible laws, a practice which is not disputed, criticised or undermined. This raises interesting questions for the UK and the view that any new Bill of Rights in the UK would have to guarantee the rights set out in the HRA as a bare minimum and may actually require conferring the judiciary new powers, because no strike down power exits under the HRA (for primary law).

This should make interesting reading for those who advocate for minimalist approach to human rights protection. Professor de Loundres also made the interesting observation that if Ireland could accept criticism and recommendations for change to the availability of abortion services without condemning and disparaging the ECHR, then its seems illogical that the UK are resorting to such measures over individual cases in the absence resounding public consensus. Almut Wittling-Vogel expressed similar concerns as Germany has also in recent years had unpopular judgements but to use the language of withdrawal and non-compliance would be simply unthinkable.

Professor Aileen McColgan provided a chilling reminder of the recent troubles in Northern Ireland and how only the ECtHR had acknowledged that the state’s interrogation practices amounted to inhuman and degrading treatment. In the absence of such a court and ECHR protection, interrogation practices of throwing detainees out of helicopters, depriving them of food and sleep and subjecting them to white noise and beatings would continue to have been characterised as ‘unintentional hardship’.

A unifying theme throughout these accounts was not to be fooled into thinking that these horrors are distant memories. Within the ECHR countries people are still captured and kidnapped by extraordinary rendition, communities such as the Roma population are segregated and discriminated against and post 9/11 counter terrorism strategies are reminiscent of the human rights abuses that occurred in NI. It was a sobering reminder of the potential abuses than can occur when human rights mechanisms are not enforced and the vital role they play in preventing a rogue practice from becoming the norm.

This was followed by an exciting and heated “Question Time” debate between Sadiq Khan MP, Julian Huppert MP and Mark Reckless MP. This provided a great opportunity for the politicians to outline their views and put forward their parties’ commitments to human rights and at times to have their human rights knowledge tested. Despite being posed a question on the UK’s attitude towards the rule of law and international obligations all three politicians failed to acknowledge the basic fact that actually a modern conception of the rule of law includes adhering to international obligations and the respect of fundamental rights and human rights which would include the ECHR and HRA.

The conference closed with a bold speech from our Director Stephen Bowen. He reminded the audience that regardless of the political debates and media distortions of human rights, human rights are still of interest and importance for “real people” that are so often side lined in the domestic debates. He said the focus must be diverted from media attack to public education, ending with a call for action to stop political bullying, to show leadership and ensure we secure our human rights legacy for future generations.

Report of UK Bill of Rights Commission in 4 pages!

At the end of 2012 the Commission on a UK Bill of Rights delivered its final report “A UK Bill of Rights: The Choice Before Us”.
The report, in two volumes of several hundred pages, was not unified. A majority of members suggested there should be a new Bill of Rights, with a minority stating that now is not the time, and there was no evidence for the majority view that a Bill of Rights is needed. Additionally, there are actually further differences of opinion within the majority view, between those who want to build on the Human Rights Act and European Convention on Human Rights, and those who make other suggestions. The main report is supplemented by eight individual papers from members, setting out their different views. (There is also a second volume with annexes including lists of those who responded to the consultations.)

At the end of 2012 the Commission on a UK Bill of Rights delivered its final report “A UK Bill of Rights: The Choice Before Us”.
The report, in two volumes of several hundred pages, was not unified. A majority of members suggested there should be a new Bill of Rights, with a minority stating that now is not the time, and there was no evidence for the majority view that a Bill of Rights is needed. Additionally, there are actually further differences of opinion within the majority view, between those who want to build on the Human Rights Act and European Convention on Human Rights, and those who make other suggestions. The main report is supplemented by eight individual papers from members, setting out their different views. (There is also a second volume with annexes including lists of those who responded to the consultations.)

BIHR has produced a short 4 page summary to help people get to grips with what the Commission’s report(s) have found after almost two years of investigations.You can download BIHR’s summary as a PDF or a Word document here:http://www.bihr.org.uk/news/bihr-summary-of-bill-of-rights-report

Shhhh…people are saying they support the Human Rights Act

One human rights story doesn’t seem to have featured in this week’s headlines and sound-bites. One which goes to the heart of our country’s values and the future of our legal protections. Interestingly it’s a positive story, and more than that one that involves the Human Rights Act. So what is the good news I hear you ask?!

So the good news…

There is a clear message of support for keeping the Human Rights Act coming out of the public consultations held by the Commission on a UK Bill of Rights. The responses to the consultation which closed on 30 September have just been made public and join those from the 2011 consultation published earlier this year.

Sadly the Commission has decided not to release its analysis of the consultation responses. However, BIHR has been doing a bit of totting up and it looks like the figures supporting the Human Right Act are around the 80-90% mark (with the caveat that we’re not statisticians!) Having read (literally) all the public responses to the 2011 consultation BIHR’s analysis suggests that around 80% of responses said there is no need for a UK Bill of Rights (mainly because the Human Rights Act functions like one) or that if there is to be any new law this should sit alongside and build on the Act.

What are people saying?

Piles of people’s postcard to the Commission on a UK Bill of Rights asking to keep the Human Rights Act safe

The message from the 2011 responses seems to have been repeated in the 2012 consultation feedback. Aiming to help people get to grips with the debates and engage with the Commission’s consultation we launched a postcard action under our #Act campaign, summed up in our slogan “To keep your Human Rights, Act”. The response was great and we were inundated with postcards from people across the country telling the Commission that the Human Rights Act is a vital safety net that protects us all, and especially at times of vulnerability. They told the Commission that the Human Rights Act is about who we are and our values.

Many people also added their own personal messages about why the Human Rights Act is important. Social workers revealed how the Act helps them do their job better. People whose parents fought in the Second World War to secure our rights expressed their concerns about replacing the Human Rights Act with something that takes our protections backwards. Parents with disabled children shared how the Human Rights Act is vital for their families. And there were even former sceptics who having found out more about the Human Rights Act realised its value.

There were just over 2000 responses to the 2012 consultation and together with a similar postcard campaign run by our friends in the Northern Ireland Human Rights Consortium it looks like we made up around 85-90% of the submissions! The 2011 and 2012 consultations together send the Commission a clear message of support for the Human Rights Act to the Commission.

Why does it matter?

The Commission is due to report back to Government at the end of this year. The Human Rights Act has been one of the red lines between two parties in Government. The Commission itself was created to bridge the gap between the Conservative party position to scrap the Human Rights Act and the Lib Dems promise to protect it.

What the responses to the Commission show is that there is public support for the Human Rights Act, and it will be interesting to see how this is reflected in the report. The people, it would seem, are saying keep our Human Rights Act. As the Commission reaches the end of its task, it is clear that the journey of securing our human rights protections and stopping them from being taken backwards is only just beginning.

To find out more and get in on the #Act campaign visit www.bihr-act.org.uk