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.