Human rights circuses: the modern gladiatorial combat.

In the days of the Romans, both Empire and Republic, it was understood that public opinion was vital in maintaining order and more importantly stability of the status quo. But how best to satisfy the public in such a way that they would support the will of their Emperor, or Senators? Through the use of gladiatorial combat and animal slaying within public amphitheatres for cheap and continuous entertainment.

Before long, such displays of violence became paramount in public and political life in Rome. Any wonder, then, that Juvenal drily remarked, ‘panem et circenses‘ – ‘bread and circuses’ – to highlight this superficial means of appeasement. In the case of politics, the phrase is used to describe the generation of public approval, gained not through exemplary or excellent public service or public policy, but via diversion, distraction, or merely satisfying the immediate requirements of a populace. Ring any bells in today’s modern political realm?

The past Sunday marked the turn in an ongoing combat of modern gladiatorial proportions in UK politics, which has ramifications for the UK legal sphere and the very (uncodified) constitution itself.

In the blue corner, we have a Conservative government still flushed with General Election success and their slim majority, eager to continue their political and legal shake-up. They are represented by one Michael Gove, the Justice Secretary. In the red corner, we have a piece of legislation which has provided certain newspapers (not that I shall mention any names, oh no)  with stories of its apparent abuse and misuse in cases, but yet enshrines rights and freedoms recognised and protected in the European Convention of Human Rights for use in domestic courts. This would be the Human Rights Act 1998, undoubtedly a controversial statute, but just as undoubtedly an important statute in recognising and protecting human rights within the UK.

Yes, this would be the ongoing battle of the Conservative government’s desire to repeal the Human Rights Act 1998, and replace it with a ‘British Bill of Rights’. And Sunday past, the  8th November saw not only Remembrance Day marked around the UK. It saw the front page splash of the The Sunday Times on apparent proposals regarding the Human Rights Act 1998. I say apparent, because considering that the government’s blueprint plans for the Human Rights Act 1998 (hereafter HRA 1998) were leaked to the press, we do have to ponder a moment: was this a deliberate leak to indicate to the people that the government will continue to pursue the creation of a ‘British Bill of Rights’ regardless of the growing EU referendum debate, the ongoing migrant crisis and the economic battle over tax credits? Or was this an accidental leak? My money is on the former. With a heavy, full international plate, the government will not want to look as though it is not paying enough attention to home, or face criticism that it is not fulfilling mandate pledges made during the General Election campaign. It also has the added benefit of providing a battleground for gladiatorial combat, visible to the general public – bread and circuses, dear reader.

Upon reading the plans, two main themes swiftly become evident. There is the aim to reclaim the supremacy of domestic law, made by elected, domestic politicians over unelected European judges. There is also the obvious attempt to clamp down on the compensation culture, which arguably has given the human rights sphere a bad name.

Within the plans, there is the key theme of instructing judges that they will no longer have to follow the caselaw from Strasbourg, but instead can rely on the common law of the UK, or decisions in other Commonwealth countries such as Canada and Australia.

The other highlights? If you are a victim of human rights violations, rest assured that senior government officials aim to tackle the ‘victim culture’ through plans which aim to reduce the amount of compensation that can be awarded. Furthermore, only cases that reach ‘a certain level of seriousness’ will be allowed to go to court. Oh, and in the future, human rights laws would applicable only in Britain, therefore implying human rights law could not be used to take members of the armed forces to court for any actions committed overseas whilst on duty. Considering that legal challenges over incidents in Iraq and Afghanistan have already cost the taxpayer £85 million, and have been controversial in seemingly ranking the human rights of insurgents over the orders carried out by British Army personnel, it is obvious the government wish to portray themselves as on the side of the ‘British’ and prevent apparent exploitation of human rights laws by ‘foreigners’.

There is a sore point for Eurosceptics who wish that the UK would withdraw from Strasbourg completely, as Gove’s consultation plans include confirming that the UK will continue to remain a signatory of the ECHR. However, there apparently are plans to enshrine the doctrine of parliamentary sovereignty (a phrase which all law students are extremely familiar with) explicitly in law. This would therefore imply that for Strasbourg rulings to be considered in the UK, it will be according to the will of Parliament. So when Strasbourg decisions are contrary to government wishes, for example the recent decision that stated prisoners should have the right to vote, under this proposed law, Westminster has the ultimate say in how to respond – not Strasbourg.

I could genuinely talk for Ireland on this topic and ongoing debate, but instead I promise to restrain myself, and be confined to this post. But truly, where do I even begin?

The general plan of scrapping the HRA 1998 for it to be replaced with a ‘British Bill of Rights’ is simply shambolic. I fear that it has not been given serious consideration, whether during the General Election campaign or now, and feels too much like a rushed proposal that stems from being a political weapon rather than any ardent desire to see proper reform. The legal and political consequences have not been given enough thought by the government: what will occur in the devolved governments? The HRA 1998 is specifically referenced in the Northern Ireland Act 1998, and it remains a vital statute in ensuring equality and non-discrimination in my state, most important considering our historical background and political context. Yet Westminster seemingly only considers the impact in England – especially given this latest plan to enshrine parliamentary sovereignty in law. Again, how will this affect devolved legislatures? How will this impact on current government plans to devolve power and authority further?

Surely the context of the passing of the HRA 1998 needs to be considered. Too often it is branded a ‘New-Labour reform’ and derided as liberalism in the extreme. It essentially guarantees human rights and freedoms in the UK, enshrining the ECHR into domestic legislation and thereby ‘bringing rights home’. This incorporation of the ECHR into domestic law means that for a compliant, they can seek legal redress in their home courts, and not have to venture to Strasbourg. Yes, this may save time and money, but it also means the UK can actively recognise and protect human rights at home. In addition, the HRA 1998 requires all public bodies – not just the central government, but institutions like the police, NHS, and local councils – to abide by these human rights, thereby recognising the importance of human rights and their universality.

Sneaky disclaimer before proceeding: the HRA 1998 and the ECHR have nothing to do with the EU. Just because the ‘E’ in ECHR stands for ‘European’ does not mean it must be of the European Union.

The whole debate is shrouded in confusion and uncertainty, and it is not helped when the government themselves apparently do not understand the legal system in the UK. Moreover, it is evident that the issue is becoming politicised, to go hand in hand with the media’s sensationalism during the coverage of human rights cases. The public most likely are not fully aware of the work carried out by the European Court of Human Rights; the public probably are not fully aware of the rights that are protected in the ECHR and enshrined in the HRA 1998. When the public are not relatively informed, it is too easy to influence them through political statements such as ‘our judges slavishly follow Strasbourg’ or ‘the HRA 1998 is open to abuse and has created  a costly victim culture’, backed up with a story of how criminal Mr X escaped deportation, because he is entitled to his Art 8 right to a family life. How the embers of moral outrage are gently stoked with such stories, which conveniently omit cases such as Ghaidan v Godin-Mendoza (apologies fellow law students) during which the HRA 1998 provided for a fresh interpretation of the word ‘spouse’ to include a same-sex partner. Or how from a Northern Ireland perspective, the HRA 1998 was used successfully to challenge a law which implicitly discriminated against gay and lesbian couples seeking to adopt children. But why not address these cases in the ongoing debate – well, it is easier to distract the public from these cases, and to have them focus only on the ‘extreme’ cases instead. Bread and circuses, dear reader.

Human rights violations to the public mind seem to conjure up notions of torture and physical harm. But human rights are more encompassing than that as the caselaw provided above indicates. Human rights protect our right to live, but also our right to freedom of assembly and expression, to a private and family life, to non-discrimination and equal opportunities. Most importantly, the ECHR and indeed the UNDHR recognise the ‘universality’ of human rights: as a human, you are entitled to fundamental rights on the basis of your humanity, and your race, creed, nationality, religion etc cannot be used as a barrier to your rights-recognition and entitlement. This also implies that any violation of these rights is also universal. So for the government to declare the new Bill of Rights would be ‘British’ and applicable only in Britain makes a mockery of human rights universality. (But the UK will still remain a signatory of the ECHR, so obviously that’s alright then.)

On the leaked government blueprints: ordering judges to follow the common law, I ask you. Judges are already doing just that in human rights cases. This is essentially the same as members of the judiciary saying that MPs should follow parliamentary conventions: it is a given. And can we please dispel this persistent claim that domestic judges ‘slavishly’ follow Strasbourg, and moreover that a ‘foreign’ court meddles in UK law?

The European Court of Human Rights is a supranational, international court, this is true. However, upon ratifying and becoming a signatory to the ECHR, nations agreed to Art 19, which established the Court to adjudicate on human rights issues, thereby agreeing to permit the creation of a new court and to abide with its rulings. The Court hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and besides judgments, the Court can also issue advisory opinions. The Court has  a system of ‘repetitive cases’ whereby the Court recognises it already delivered judgment finding a violation of the European Convention on Human Rights or where well established caselaw exists on a similar case. It is not an arbitrary, foreign body which seeks to offend nations: it was legitimately created via the Council of Europe, and acts as an impartial, nationality-neutral judicial institution in order to adjudicate on allegations of human rights violations. Perhaps the UK government is simply aggrieved that this court provides a means for an individual to challenge a state’s decision?

Furthermore, whilst the Court may comprise of unelected judges, one could argue that this in fact ensures they adhere to the law as impartial decision-makers, and are not swayed by political affiliations, nor concerned about securing their re-election. To argue against judicial scrutiny and decision-making on the basis of the unelected status of the judge is laughable when one considers that judges in the UK are unelected. It therefore would appear the government is submitting a case of ‘our unelected judges are better than your unelected judges because they’re from here’. Meanwhile, elected politicians may have secure their seats due to winning the popular vote and thus can argue they represent the true will of the people, but let us not forget they are seated in Westminster to toe the party line and obey the party Whip.

But allow me to highlight the main flaw of the debate, that of the HRA 1998 somehow eroding the sovereignty of parliament, hence the proposal to have parliamentary sovereignty enshrined into legislation. The HRA 1998 actually seeks to protect parliamentary sovereignty.

Firstly, allow me to present to you s3(1) and (2) of the HRA 1998:

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—
(a)applies to primary legislation and subordinate legislation whenever enacted;
(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

So, UK legislation has to be read in such a way that is compatible with the human rights enshrined in the HRA 1998, but look – whilst this section applies to primary legislation (that passed by Westminster, for example) and subordinate legislation (see devolved legislatures’ passing of legislation to tailor the Westminster legislation to their own states), this does not affect the validity, operation or enforcement of the legislation.

But what if it cannot be read to give effect to convention rights, I hear you cry. Cue s4 of the HRA 1998, which provides for courts to issue a declaration of incompatibility. And s4(6) explicitly states that a declaration of incompatibility ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’. Essentially, judges can state that the legislation at hand cannot be compatible with convention rights, but cannot strike this legislation down – it is the duty of Parliament to consider legal reform. Parliament’s sovereignty is consistently considered and indeed even safeguarded in the HRA 1998 according to s3 and s4, so why the government must persist in this notion that Westminster is under threat from the judiciary, both at home and abroad when it comes to human rights, I have no idea.

Juvenal argued that the circuses in Ancient Rome were a means of superficial appeasement. If the government hopes to portray itself as the government of the people, the government that clamped down on compensation culture and reinforced ‘Britishness’, well it may need to reconsider. The public apparently do not want to be appeased by this move to scrap the HRA 1998, given how just one in ten surveyed said it should be within the top three priorities for the government.

In sum, this ongoing debate is truly a modern gladiatorial combat within a human rights circus. It will be played out before the public over the coming weeks, as the government apparently seeks to have it addressed before Christmas. (Goodwill to all then, provided that you are not a human rights violation victim, that is.) We will soon find out whether this proposal is merely a means of appeasement, of satisfying a public who reads about human rights law misuse on a regular basis. Of course, this could just be the distraction the government requires, now that the EU negotiations are to commence.

Bread and circuses, dear reader. Always bread and circuses.

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