Of human rights and Brexit: the importance of the EU Charter.

Yesterday, as you may be aware, was Day Two of the Commons’ consideration of the Lords amendments to the European Union (Withdrawal) Bill. Lords amendments that were up for debate in the House included Amendment no. 1 (to prevent the repeal of the 1972 Act unless the UK government sets out plans to negotiate a continued customs union post Brexit); amendment no. 51 (to oblige the UK government to prioritise continued participation in the EEA during the negotiations); and amendment no. 5 (to allow for the transposition of the EU Charter of Fundamental Rights into domestic law post Brexit). I had been glued to the Commons livestream and BBC Parliament throughout Tuesday (13 June), Day One of consideration, and Wednesday, Day Two of same.

Yesterday, I recalled how I had followed as the Lords inflicted defeat after defeat on the UK government on the Bill. I remembered feeling so utterly relieved that vital issues had been raised in the Lords, and that important amendments had been tabled to the Bill (including an amendment to uphold the provisions of the Good Friday Agreement, to allow for continued North-South co-operation, and to prevent a hard border on the island). I had felt so frustrated at the government’s lack of consideration of such pressing issues, at their continuous intent to pursue a hard Brexit, at their seemingly haphazard Brexit policy. To see the Lords debate and consider the issues which the government seemed intent to ignore was refreshing and uplifting. Finally, I thought, finally issues like the Good Friday Agreement and the need to prevent the imposition of a hard border in Ireland were being considered and would be inserted into draft legislation. Finally, human rights and equality protections were being recognised, and tabled for inclusion in the draft legislation.

You see, the outcome of the European Referendum in the United Kingdom which led to the Brexit result always had vast political, economic and social implications. There remains, however, considerable uncertainty as to what those ramifications will be – including the implications for human rights standards and protection. This uncertainty has not been helped by the repeated dismissals of the UK government that human rights and equality protections would not diminish – even as the White Paper on the then-named Great Repeal Bill was published, with the deliberate ommission of the EU Charter.

The European Union (Withdrawal) Bill when introduced in the Commons last year in accordance with the White paper did not make provision for the retention of the Charter. The UK government considered then (and still does now) it to be an exception to the incorporation of EU law into UK law, with the Bill stating the Charter shall not be part of domestic law on or after exit day. The Bill states this does not affect the retention of any fundamental rights or principles which exist irrespective of the Charter. The UK Government has emphasised that the Charter did not create new rights; rather it codified rights and principles already present in EU law.

This claim is inaccurate.

All EU member states have signed up to the European Union Charter of Fundamental Rights. The Charter was given legal status in 2007 through the Lisbon Treaty, and was introduced in December 2009. The Charter complements the European Convention on Human Rights (ECHR), and recognises at Article 52(3) that wherever Charter rights correspond to Convention rights, the meaning and scope of the rights are the same as those laid down by the Convention. This provision does not prevent EU law providing more expansive protection. Indeed, EU law has availed of this, as outlined below.

Now, the scope of the Charter is narrower than the ECHR, in that it applies the convention rights only to public bodies and only when they make decisions within the scope of EU Law. Moreover, the Charter has not been incorporated into domestic law through the Human Rights Act 1998. However, in other respects, the Charter offers greater scope through enforcement at the Court of Justice of the European Union (CJEU). The CJEU can disapply national law and provide remedies. In contrast, recognised breaches of Convention rights in primary legislation can only lead to a declaration of incompatibility, thus leaving any remedy to Parliament. Moreover, the Charter also goes beyond the Convention in outlining social and economic rights alongside civil and political rights under the headings of dignity, freedom, equality, solidarity, citizen’s rights and justice.

Therefore, whilst rights similar to most Charter rights can be found in ECHR and domestic laws, it is important to note that similar is not necessarily the same. The Charter protects important rights that may not be fully secured by other sources.

The Charter is widely considered to be the most advanced document of its kind, and includes rights that cannot be found in any other directly enforceable fundamental rights instrument to which the UK is a party. Unlike older instruments, the Charter contains ‘third generation’ rights – such as to data protection and guarantees on bioethics – that have proven especially important in protecting people’s rights in light of rapid technological and societal change.

UK law does not have the domestic equivalent of the Charter, meaning there could be a gap in human rights protections for such outlined third generation fundamental rights ie socio-economic rights post-Brexit.

Lord Pannick moved the amendment in the Lords which sought to allow for the transposition of the Charter into UK statute post Brexit. He emphasised the significant protections it provides, the legal uncertainty that would be generated should it not be incorporated into domestic law, and the loss of rights protections which are not present in current domestic legislation. The majority of peers who voted on his amendment understood the significance of the Charter, and voted in favour of retaining it. And so the government was defeated.

The government had avoided an embarassing defeat previously in the Commons. In November 2017, the former Attorney General Dominic Grieve MP tabled an amendment that would have enshrined the EU Charter into UK law as part of the EU (Withdrawal) Bill. During the third day of debate on the Bill, the Solicitor General, Robert Buckland, said the UK Government was willing to work with Mr Grieve to see how rights under the Charter could be kept after Brexit, and would introduce its own amendment to this effect later in the bill’s passage. Mr Grieve said that was sufficient reassurance for him, and so he would not press for a vote on his amendment.

On the 5th December 2017, the UK Government published its Right by Right analysis of the Charter. The conclusion was that there would no weakening of rights protections post-Brexit, even if the Charter ceased to be part of UK statute. However, the UK Government’s Right by Right analysis, contrary to its aim, clearly demonstrates what will be lost when the Charter is abandoned. As highlighted by Liberty and Amnesty, the analysis cites the general principles of EU as providing equivalent rights -yet these are the very same principles whose enforceability is eroded by the European Union (Withdrawal) Bill.

In addition, the Equality and Human Rights Commission sought independent legal advice which found that, as opposed to the prevention of weakening of rights protections, rights would in fact be lost, such as those which do not have direct equivalents in other UK human rights law e.g a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity.

The Opinion concluded:
In summary, therefore, my principal conclusion is that the approach currently taken in the Bill does not achieve the Government’s stated intention that the protection of substantive rights conferred by the Charter will not be weakened. That intention can only be achieved by 13 incorporating relevant provisions of the Charter in the corpus of EU law which is retained after Brexit.

And so we come full circle, to Lord Pannick’s amendment receiving support from a majority of peers in the Lords, to that amendment returning to the Commons for a potential showdown in accordance with parliamentary ping pong. I followed the debate with interest.

In April this year, at the SDLP annual conference, I proposed my motion which included a provision to note with concern that the UK government’s EU (Withdrawal) Bill omitted to transpose the EU Charter of Fundamental Rights into domestic law upon withdrawal from the EU. I noted my concern that the government’s Brexit policy was not considering vital human rights and equality protections. My motion overall called for the prevention of any weakening of human rights protection post-Brexit.

I spoke in my capacity as the SDLP’s International Secretary, and said (half jokingly!) how since I was elected to the post, I had not stopped talking about the ramifications of Brexit to NI, but particularly my concerns about implications for human rights and equality standards.

Yesterday, I watched as the House of Commons voted by just twenty votes (321-301) to reject the amendment from the House of Lords to the EU (Withdrawal) Bill that would have incorporated the EU Charter into domestic law.

Watching as the vote was confirmed, I felt a crushing sense of loss.

The EU Charter provides for additional recognition and protection for third generation, fundamental rights, socio-economic rights such as workers’ rights (including collective bargaining). The Charter has allowed for the evolution of important rights we now take for granted. It has been a valuable addition to equality and non-discrimination law, specifically around LGBT rights, children’s rights, and rights of the elderly. I could not, and today I still cannot understand how MPs could vote to reject important provisions on human rights, equality, and non-discrimination protections.

I was disappointed, but sadly not surprised. After all, the party of government has long supported the repeal of the Human Rights Act 1998, and its replacement with a British Bill of Rights. Moreover, the Conservative party would also been keen to see the UK withdraw from the ECHR – a deeply concerning prospect.

No matter what the UK government, various ministers, or the UK government’s ‘right by right analysis’ state, UK law does not have the equivalent of the EU Charter. Excluding the EU Charter from the EU (Withdrawal) Bill, with the implication that it will not be retained post Brexit, will result in a significant reduction in human rights protections. There will be a gap in human rights protections for those third generational rights, those socio-economic rights, as well as generate legal uncertainty and confusion.

There will also be a specific impact on NI: the Good Friday Agreement provided that there would be an equivalence of human rights and equality standards across the island of Ireland. If NI loses the protections advanced by the EU Charter whilst the Republic retains them, then citizens in NI will suffer from a diminution of human rights standards, recognition, and protection. The UK government is a co-guarantor of the Agreement; it should be aware that its desire to refrain from incorporating the EU Charter into domestic law clashes with the Agreement.

The overall decision to leave the European Union has highlighted -and in conjunction with the UK government’s current Brexit policy, threatened -the Good Friday Agreement’s aim of ensuring an equivalent level of human rights protection across the island of Ireland. The potential loss of the Charter in conjunction with the ongoing absence of a Bill of Rights for Northern Ireland means human rights protections could be undermined. The UK government as a co-guarantor of the Good Friday Agreement must understand it has a responsibility to support the full implementation and realisation of all provisions of the Agreement, including those which require equivalent human rights standards and protections. Apparently, the UK government is not aware of this important responsibility.

At the SDLP annual conference, I concluded my speech by saying, “Theresa May says Brexit means Brexit. We must say human rights mean human rights.”

I am disappointed and frustrated by yesterday’s vote and the continuation of the UK government to pursue a purist Brexit ideology which is ignoring human rights and equality provisions. We deserve better. Our human rights deserve better.


Bill of Rights for NI: why have one?

I have previously written about the student working group on human rights I am a part of. Our main area of focus is on the Bill of Rights for Northern Ireland, as provided for in the Good Friday Agreement 1998.

Our work to date has involved examining the historical context to the proposal of a Bill of Rights for Northern Ireland, and considering the provision for a Bill of Rights within the Good Friday Agreement. I personally have examined and summarised the 2008 submission of the Northern Ireland Human Rights Commission to the Secretary of State for Northern Ireland, and the Joint Committee’s 2011 advice on a Charter of Rights for the island of Ireland. Another participate has summarised the response of the Northern Ireland Office to the Northern Ireland Human Rights Commission 2008 submission. We are currently working on incorporating our research into a report, and we will conclude by submitting our argument that a Bill of Rights for Northern Ireland is necessary, and now is the time to see it realised.

Northern Ireland faces great uncertainty in the wake of Brexit. We are currently experiencing a political vacuum – no agreement was after weeks of talks to form a new Executive after the snap March election, meaning we have no devolved government, and now talks are paused for the snap General Election – with the threat of direct rule looming on the horizon. Given political uncertainty and lack of government, the need to recognise and protect human rights in Northern Ireland is vital.

Many countries have a bill of rights in some form. It has been found that 82% of constitutions drafted between 1788 and 1948 contained some form of human rights protection. This figure increased to 93% between 1949 and 1975. This trend continued throughout the 1980s, and by 1990 onwards, as many countries underwent peace processes and transition towards new constitutional settlements, human rights frameworks became routine. This ‘routine’ was applied to Northern Ireland as it underwent a peace process and constitutional transition in 1998.

A bill of rights is a constitutional document, essentially a list, of the most important rights and freedoms belonging to the citizens of a state. The primary purpose of this document is the provision of rights, and the protection of those rights against infringement, with the bill of rights acting as a type of contract between citizens and the state.

States may opt to enshrine a bill of rights as they recognise there are certain values and principles which are so basic, and so fundamental, they wish to put them beyond the reach of government. Rights such as the right to fair trial are arguably matters to be protected against state interference, irrespective of shifts in the political landscape. Bills of rights therefore aim to separate these fundamental values from politics, and subjective political interpretation.

Adopting a bill of rights also provides for a clearer understanding of the democratic structure of the state, especially with regards to restrictions on political decision-making, and the state’s responsibilities for its citizens. This model emphasises participation, but also ensures a balance between necessary limitation of majority rule – thus preventing any abuses of power – and the encouragement of equal participation of all.

States therefore tend to adopt bills of rights when agreeing upon a new or revised constitution, as part of a peace settlement after a period of internal conflict, and/or as a solution to political, legal or moral pressure to address failures to protect rights.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

Conservatives and European Convention on Human Rights… Again

Whenever the Conservatives are not falling out over Europe in the form of the European Union, they are falling out over human rights. Merge these two traditional battlegrounds together, and you are left with the European Convention on Human Rights (ECHR). And after the Prime Minster’s sudden announcement of a snap General Election, it should come as no surprise that the ongoing ECHR issue will inevitably feature in some form.

Yes, the Conservatives have a habit of expressing their desire to repeal the Human Rights Act 1998, the legislation which enshrines the Convention into domestic law. They also have a fondness for expressing their deep-rooted hope to see the creation of a British Bill of Rights in place of the 1998 Act. The more daring and extreme will speak too of the UK withdrawing from the European Convention itself.

I have written about all this before, but this once again is of topical relevance since the announcement we shall return to the polls on the 8th June.

Since becoming Prime Minister – back when she kept vowing she would never call an early election – it was reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. Apparently, the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR.

It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result. And recall that during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.

So the question becomes this: if Mrs May intended to fight the 2020 General Election on a manifesto pledge to see the withdrawal of the UK from the ECHR, might it feature now, during this snap campaign? Moreover, if Mrs May is calling this early election on the basis of her slim majority and the need for a greater mandate, should she acquire a comfortable majority, would she venture forth and take the UK out of the ECHR?

It would appear I am not the only one querying what might unfold. Theresa May has apparently been urged to commit to staying in the ECHR in the next Parliamentary term, dude to concerns she could try to get a mandate at the election for taking the UK out of the treaty after Brexit. And this comes from within her own party, as some in the liberal wing of the party (yes, such a wing apparently exists in the Conservative party) are worried that Mrs May will be tempted to include leaving the convention in her election manifesto.

After all, her predecessor David Cameron at the last election submitted plans for a British Bill of Rights to restore some sovereignty over human rights whilst remaining within the ECHR. Thus Mrs May now finds herself having to decide whether to proceed with those plans after Brexit, or go even further and withdraw the UK . This was advocated last year by Nick Timothy, her co-chief of staff – who just happens to be heavily involved in drafting the Conservative’s manifesto.

I wrote only a few months ago:

Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.

Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.

At this point, after so many ups and downs in politics and a never-ending stream of elections, I will say this: never say never. I would not be surprised if Mrs May, intent on pursuing a hard Brexit, might go further and not only oversee the UK withdrawing from the EU, but perhaps the ECHR as well.

Human rights working group – Bill of Rights for Northern Ireland.

For the past couple of months, a group of QUB students, including myself, have been part of a working group on human rights in Northern Ireland. We are focusing particularly on the need for a Bill of Rights in Northern Ireland, as provided for in the Good Friday Agreement 1998.

The Good Friday Agreement 1998 included the commitment that the upon the establishment of a Northern Ireland Human Rights Commission, it would be asked:

“…to consult and to advice on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experiences. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”

This commitment was subsequently reflected in the Northern Ireland Act 1998.

As the 19th anniversary of the Agreement recently came and went  against a backdrop of continued political stalemate and inertia, we feel it is time for the Bill of Rights to be prioritised.

A Bill of Rights for Northern Ireland, which would take into account the particular circumstances of Northern Ireland, would ensure legal recognition and protection of the human rights of all our citizens. Human rights has become topical here since the very announcement of the March election, let alone after the smoke cleared and the parties sought to interpret the results delivered by the electorate. As the political situation rumbles on, with legacy cases and Irish key issues, and as the outcome of Brexit remains uncertain, it is time for a Bill of Rights to be realised for the benefit of all.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

It’s been an utter pleasure to work with fellow students on human rights in NI, and I am looking forward to our future work!

We have written a blog post for Rights NI, an online platform for the discussion of human-rights based issues, entitled ‘QUB student working group calls for renewed consideration of NI Bill of Rights‘.

We are currently working on a report which will merge together our individial research and research papers on the subject. It will ultimately conclude that it is time for a Bill of Rights to be realised and implemented.

I am tasked with overseeing the report, and have spent the a couple of evenings after work merging the documents together. It has been fascinating work, and I cannot wait to see where we end up.

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.

Of Human Rights and Individual Conceptions.

Week Three of final year Law is rapidly approaching its conclusion, and I am still as motivated and intrigued by my modules – evidently a good thing, to be sure.

As ever, this week has revolved around human rights, and legal theories and has continued to be fascinating. I particularly enjoy being able to study the history and development of various critiques, understanding the historical context and determining whether they still ring true today – see the work of John Austin, for example. My first tutorial for Legal Theory was this week, and I fear that my year abroad in America is beginning to become apparent to my peers as I did nothing but talk to our tutor and lead in the smaller group work. Oh dear. I was just too enthusiastic about the topics at hand, namely Socrates’ trial, the concepts of morality and justice, and the curiously complex questions of a) what is law, and b) whether law and morality should be separate issues, or are they destined to be entwined.

There was also an amusing moment during my Understanding Human Rights module, when our amazing lecturer happened to use my summary of a Marxist perspective when watching Pride (you can read more here) as the introductory slide in her presentation on Marxist theory. Cue my awkward shuffle in my chair as I could feel the gaze of my classmates on my neck.

To get to the heart of this post: for this week’s UHR seminar, we read a passage written by Navi Pillay, the UN High Commissioner for Human Rights, on ‘What are human rights for?’ (see D Moeckli, S Shah, and S Sivakuraman (eds.), 2nd International Human Rights Law (OUP: Oxford 2014) pg 3-6) which was a thought-provoking piece. She begins her answer by saying ‘I was born non-white in apartheid South Africa… My father was a bus driver. We were poor.’ From this, our lecturer asked us to think about:

1) [whether we] think our conceptions of what human rights are for depend on our gender, race, class and where we were born? Should they?

2) What do you think human rights are for?

I felt strongly about the first question, and whilst I felt frustrated contemplating the general modern political consensus of human rights as that which ‘restricts domestic courts’ or as ‘positive discrimination’, I was surprised to discover that by answering the second, I was hopeful.

Navi Pillay’s comments were inspiring, because to me they reveal her belief in the universality of rights and how being human is to be entitled to rights. Her belief in rights-entitlement was her strength and motivation to challenge the apartheid regime, which view her as inferior and not entitled to the same rights and freedoms as her white counterparts. Her unwavering belief in her equal standing to whites saw her through university to the establishment of her law firm. Being from a poor background, and as a black lady, she challenged prejudice because she believed human rights applied to her, just as they applied to her white peers.

Our first instinctive answer to the first question I think tends to be, “of course our conceptions of human rights do not, and indeed should not depend on gender, race, etc.” Yet upon reflection, you realise that as a society we are perhaps influenced by our class, our background etc. into viewing who should have rights-entitlement, and who should not. In addition, negative press, and condemnation of human rights law by leading politicians may result in our conceptions of human rights and who exactly is entitled to having their rights starting to ‘blur’.

The trickier question is the second part: I believe that our conceptions, in a perfect world, would not influence our conceptions of human rights, as we would all accept that as we are all human, we all should enjoy the protection and recognition of rights. Sadly, we do not live in a perfect world, and must accept that our influences can be either positive or negative. It is evident that those marginalised by society due to their class or race, or treated inequality by their fellow citizens due to their skin colour, gender or sexual orientation are more likely to allow these experiences to shape their opinion of rights as universal, and thus as ‘protection’. Those who do not encounter racism, discrimination or homophobia etc. do not understand how important rights are to the marginalised; they are more likely to be influenced by their own ‘privileged’ positions to argue that rights are already enjoyed by all.

I believe this question should make us realise that there are ‘privileged’ citizens, and due to their status and own guaranteed rights they cannot see why other citizens will demand equal rights-recognition; each having different conceptions of human rights and who is entitled to them. I would submit as an example LGBT* citizens in Northern Ireland. They ask for and deserve equality, and should be entitled to equality and non-discrimination under the law in Northern Ireland – namely that of the HRA 1998. The current issues of this sort would be of same-sex marriage and also the ‘gay-blood ban’. However, there are those in our society who, because of their own background and potentially religion views, refuse to accept that their fellow citizens, fellow humans, are entitled to rights equality. Members of the LGBT* community thus see human rights as their means, both on legal and political levels, to secure true equality in society. Their conception would be that as humans, they are entitled to human rights, which have been declared to be ‘universal’ and ‘inalienable’, whether by the UDHR, or ECHR. Conversely, those in society, influenced by their political and religious beliefs would argue that the law cannot be interpreted to agree with the demands of the LGBT* community. (There is an element of a natural law argument in their conception of human rights; these citizens would argue that the law of God cannot provide what man demands should be law.)

I mentioned in my reply to last week’s discussion the film Selma. I offer this as a further example of how differing backgrounds and beliefs influence our views on human rights, and the entitlement of same. Essentially, the film focuses on the struggle of the African-American community to secure rights-recognition through being granted the right to an equal vote. To be able to vote means more than society participation and maintaining a democratic system  – it means that your voice counts, that you matter as a member of society. The film is based in Alabama, which essentially viewed African-Americans as the lowest class of citizen, and not deserving of the right to vote. Furthermore, the state officials fear that if ‘the blacks’ can vote, they will change society and challenge the status quo. The African-American community fight to be granted the right to vote, knowing that they can achieve numerous positive changes through democracy. They felt entitled to vote, and thus be counted, as humans. However, the status quo in Alabama viewed them simply on the basis of their different skin colour; their own racist views and conservative opinions influenced their conception of rights, holding that African-Americans were not equal to them and not deserving of the same rights and freedoms. This struggle for equal recognition in society is still ongoing for the African-American community in the USA, just as we witness the similar struggle for civil rights and equal recognition for the LGBT* community.

From a personal perspective: as a young woman, I would view human rights as confirmation that my worth is equal to that of my male peers. This, and being from a working class background, results in my conception of human rights as a means to prevent discrimination and ensure equality and fairness, in society and in the eyes of the law. My own background ensures that I will be sympathetic to the struggles of those citizens likely to suffer discrimination; I will advocate their rights as I believe that we are all entitled to rights-recognition and protection.  Should my background etc. influence my conception of human rights? I would argue that it should, because it means that I strongly believe that human rights should be protected and recognised for all. As a human, and one who enjoys rights-recognition, I am aware that there are those who do not and I cannot see why I should not support them in their struggle to achieve rights-equality.

I thought that this is a very intriguing question, because it develops on the premise of the gap we have been discussing in class between the theoretical expectations of human rights, and the practice of human rights. Those whose conceptions of human rights stem from universality and equality of entitlement would argue that the gap between expectation and practice is wrong, and needs to be amended. Conversely, those who are influenced by gender, class, religion, political ideology etc. may argue that current human rights law is protection enough, and needs no further clarification or expansion. This can be seen in the current -Conservative! – government’s proposal to scrap the HRA 1998 and replace it with a ‘British Bill of Rights’.

To address the second question: I feel that human rights are definitely a means to ensure equality in existence and for the protection of humanity. I think that human rights exist to  essentially ensure that all humans are recognised as equal beings. Human rights provide encouragement and motivation, as we are aware that we are all human and thus all possess dignity, which needs to be respected. By encouragement and motivation, I mean that by being aware of human rights, and what they provide and protect, we are aware of what we are entitled to – eg. freedom of expression, right to an education, right to assemble – which in turn encourages us to aspire in our goals. This could be either career goals, or to aim to campaign on behalf of others. Navi Pillay was aware of her human rights, taking encouragement from their stemming from shared humanity and dignity and thus aimed to succeed regardless of the prejudice she faced in South Africa as a black, working class lady.

Human rights are present to provide hope to those who may be classified as ‘others’ so that these minorities are aware that they are equally entitled to existence, to education, etc. Human rights are for motivation, so that we come to realise that regardless of race, background, language etc., we are all human and should be respected. Therefore, human rights are a platform for us to realise that discrimination and racism is deplorable.

It is 2015. If we cannot realise our shared humanity by now, when shall we? Human rights exist for us to do exactly that.