In yesterday’s Conservative manifesto, we finally see what the party proposes to do about domestic human rights protection if re-elected as a majority Government in a few weeks time. If they are forced to form a coalition with the Lib Dems, the plans are likely to fall on barren ground, as they have since 2010. Though the LibDem manifesto is not quite out, at the time of writing, they have made clear their commitment to the Human Rights Act throughout, though with some opacity in recent weeks: see this speech by LibDem Justice Minister Simon Hughes at Kings College London a few weeks back. Thanks to James Lee for pointing me towards it.
Mark Elliott provided his usual clear analysis of the Conservative plans while the ink was still wet on the manifesto yesterday and I don’t plan to repeat much of that. It seems to me though that one further point is worth making.
This relates to the location of the commitment in the manifesto. It is not to be found in a section on the constitution, or on rights or on the citizen or on democracy. In its 2010 “Invitation to Join the Government of Britain” (which I politely declined) the commitment to replace the HRA with a British Bill of Rights was in the “Change Politics” section. Labour’s 2015 commitment to retain the HRA is in the section of the manifesto headed “Reforming government to give more power to people…”. The Greens have placed their same commitment in “Government and People”.
Instead we find the HRA, the European Convention and the Strasbourg Court in two places. The first locates the discussion in a section on “Fighting Crime and Standing up for Victims”. The second in “Real Change in our Relationship with the European Union”. This tells us much.
Either there is no one in the Conservative Party with the responsibility for the drafting and checking, and ultimately approval, of the manifesto who knows the Convention (and thus the HRA) has nothing to do with the EU or they do, but simply decided, knowingly to include it there anyway. The latter means they deserve our total contempt – seeking to elide and to confuse, the tired old, same old “Europe is singularly bad, let’s get out of both”, pandering to a narrative of misplaced fear, linking it in the minds of voters to the bogeyman of EU immigration. The former means they simply do not deserve our vote – they cannot be trusted to run HMG Foreign Policy if they do not know the scope of what falls within its aegis. It is both frightening and woeful in equal measure, a mistake I seek to drum out of the minds of my 1st year law students, not one we’d expect to see in document seeking our consent to being governed.
Locating the plans for repeal of the HRA within a narrative about crime and victims is equally mendacious – and about a subtle as a brick lobbed through a window before a burglary. It is speaks to another discourse of fear – not one premised on unlimited immigration, of Romanians coming over and taking all our jobs, schools, hospitals, lottery tickets, car parking places, spots on the beach etc etc – but a fear of being attacked, of being subject to terrorism, of being robbed. It is singularly narrow and comprehensively mistaken in its assessment of the proper role and effect of the HRA over the past fifteen years or so.
While it is undoubtedly true that the ECHR, and thus the HRA, confers certain rights on criminal suspects – oh, I don’t know let’s call them “fair trial rights” – in Article 6, primarily, it is nonsense to think that this is some alien invasion. One of the few remaining aspects of Magna Carta still “on the books” relates to criminal trials and the dispensing of justice, that it should not be sold, denied or deferred. We have seen too that the common law protects “criminals” most recently by the Supreme Court in Osborn v Parole Board, requiring that prisoners have an oral hearing before release decisions are taken. Furthermore, there has been a clear and marked expansion of victims’ rights using the HRA itself: absent Article 2, there would be no right to a McCann independent investigation into deaths – the common law not requiring such; only by virtue of the HRA – and Arts 3 and 8 – have victims of crime been able to seek accountability from the police for their failure to investigate and prevent crime, as the High Court held in DSD last year, the so-called “black cab rapist case”; lastly, it is the HRA that has allowed victims of crime to challenge prosecution decisions by the CPS (see last month’s NXB decision as an example, albeit lost on the application of the law).
The case that the HRA has led to the citizens of the UK being regularly and continuously being exposed to the repeated threats from criminals we cannot deport after release has being hyperinflated by media coverage, or by certain elements of it. An earlier post of mine on this blog related some empirical research I had conducted. In broad terms, readers of many UK newspapers, both tabloid and broadsheet, are painted at best half a picture and more likely a totally different picture of the reality of human rights cases and litigation both domestically and before Strasbourg. That research showed that large numbers of cases where the UK succeeded before the European Court simply never made the press – skewing us to think the UK largely lost. More pertinently for the instant point, I studied a year’s worth of Daily Mail coverage of the deportations of foreign criminals. I found the paper massively over-reported the number who successfully avoid deportation. Of 21 stories for that year only two were about or told the tale of the Home Secretary’s success. The other 19 were in various guises how the UK was forced to let them remain. This portrays a success rate for the applicants of some 91.5%. Even on The Daily Mail’s own figures the reality is a success rate of about 33% and the Home Office’s own data (admittedly for the previous year) indicated a success rate of about 24%. It is no wonder that readers of The Daily Mail believe the only alternatives to a life bedevilled by foreign criminals (coming over here doing our own out of a job) are to remain indoors and lock all the doors, or to repeal the HRA.
My last point is the dog that didn’t bark. With the pledge situated in those two sections, readers of the manifesto, will not know about the everyday strengths of the HRA, how it has beyond any doubt improved the lives of many, many of our fellow citizens:
- the elderly couple who used the HRA to ensure that they remained together, housed in the same old people’s home;
- Beth Warren who is now able to have longer time than the statutory framework allowed to decide whether or not she’d like to use her deceased partner’s sperm to found a family;
- the parents of Joanna Michael, able to use Article 2 to found a claim against the police who failed to respond quickly enough to their daughter’s 999 call such that she was murdered by her partner – and when at common law the Supreme Court upheld police immunity from suit;
- the relatives of those who died at the Mid-Staffs hospital, able to use the HRA first to persuade the government to hold a public inquiry and then to obtain compensation
More widely speaking, in 2010 the Conservatives framed their pledge about HRA repeal with this: it would be done in order to “protect our freedoms from state encroachment”. Five years is a long time in government. From its location in the manifesto now we can only conclude that the Conservatives clearly do not currently see the HRA or human rights more generally as being a constitutional issue – as being about the control of government, about limiting the sometimes natural majoritarian (and populist) excesses of Parliament, and as being about the consensual relationship between citizens and state under which the basics of both human existence and human flourishing are so foundational as to be beyond peradventure. If a portrait can paint a thousand words…