Rights Gone Wrong?

by Carl Gardner on March 17, 2012

On Thursday night the BBC screened Rights Gone Wrong? presented by Andrew Neil and produced by Matthew Laza. I’m glad my mum reminded me to see it.

The human rights debate in this country seems to have got unfortunately bogged down into a dispute between some, mainly on the right, who think the European Convention on Human Rights and the Human Rights Act are the root of more or less all evil; and those who think everything that has flowed from both is unalloyedly good. The truth and most people’s views are more complex, and I think this programme explored the issues pretty well.

It considered things very much from a human angle, and didn’t set out to investigate legal detail, but while appealing to a broad audience took far from the worst sort of populist approach. What struck me was how relatively unpolarised the discussion was compared to many treatments of this subject. It identified some genuine concerns and challenges arising from human rights judgments, and the difficulties facing those who’d like to change our human rights laws.

Rosalind English at the UK Human Rights Blog is fairly positive about the programme, as is James Walton at the Telegraph who calls it “level headed” – a fair characterisation in my view. Charon QC, while suggesting “there were faults in the analysis and scope”, urges you to see it. I recommend it too. I was pleased to see the BBC show a very accessible but non-simplistic hour on this important subject. The only shame is that it was shown on BBC2 rather than BBC1.

You can watch Rights Gone Wrong? for another few days.

{ 9 comments… read them below or add one }

1 Tim ( @TimRegency ) March 17, 2012 at 17:31

I am having some difficulty working out what it is that Andrew Neil wants in the context of the facts.

Yes, there have been a few ‘controversial’ ECtHR judgments, but most applications are ruled inadmissible and the UK loses only a minority of cases.

It’s as if Neil is saying that he expects every or almost every single judgment to be in perfect harmony with his opinions or the opinion of the so-called ‘decent majority.’

Just because a lot of people think something does not make it right and majorities have a sinister reputation for bullying minorities. Indeed, that is precisely what happened in Nazi Germany and demonstrates why the current set up is good and fit for purpose, whereas a ‘democratic override’ is not.

2 Johannes Franke March 17, 2012 at 19:40

…Talking about human rights, I got a little hint:
There is an exciting documentary project:
http://www.youtube.com/watch?v=0MWaaK0fDJA

A film crew accompanies a human rights seminar for young adults from Belarus, Germany and Ukraine, where the participants get the necessary know-how to realize human rights campaigns.
The documentary will show the progress of the project and portraits the generation, their living conditions in Central and Eastern Europe, and the limitations they have to face.

The Project urgently needs financial support to finish the project. Here you can support it: http://startnext.de/en/speak-up

I would be glad if you reblog this…

3 ukliberty March 21, 2012 at 10:17

Carl, I’m stunned that you say the programme was “non-simplistic”!

4 Carl Gardner March 21, 2012 at 12:29

These thing are relative I suppose, Liberty.

I don’t really expect a TV programme to delve into the kind of detail you can find on a law blog (which I find myself increasingly thinking about all kinds of legal coverage) and I’m not sure it should, either, if it’s aiming for a big mainstream audience.

I was expecting something much more “ding-dong” with a “if you like human rights you must love the HRA” pitched against “Yooman rights? Schmooman rights. Let’s pull out of this criminals’ Eurocharter”. It wasn’t like that at all, I didn’t think.

A number of those interviewed were positive about the idea of human rights even if troubled by the effects of human rights laws in particular cases, and one, Jasvinder Sanghera, can reasonably be called a human rights activist herself – she’s certainly done more in practical terms for human rights than I have. John Reid, many people’s idea of a bogeyman, did not call for pulling out of the ECHR put expressed concern that the public don’t see human rights law as “on their side”. And a famous silk often associated with human rights causes, Geoffrey Robertson, expressed a pro-human rights stance yet wanted a Britishisation of the Human Rights Act. I don’t think any of those positions were simplistic.

Yes, there was Philip Davies MP who wants us to pull out: that’s a view that exists, and I think that Eurosceptic Tory view, being one of the main drivers of the debate, had to be represented somehow; we also had Michael Mansfield QC giving a straighforward defence of human rights law and John Hirst arguing for prisoners’s votes. Those three could reasonably be called the most simplistic contributions. I was pleased though that the whole programme wasn’t taken over by those, fairly often heard, perspectives.

So if you take law blogs and legal discussion as your measure, maybe it was simplistic. But if you compare it to most newspaper and TV discussions of human rights, I think it certainly wasn’t.

Mind you (and as a supporter of the ECHR, ECtHR and HRA, as I often say to ward off possible misunderstanding), I’ve also heard plenty of simplistic talk from lawyers about human rights, along the lines of “why don’t these silly people just shut up and realise how good human rights are?”. I think that’s a very unwise position to take for anyone who wants to preserve the UK’s current legal position in respect of human rights.

I’m not saying that’s your position!

5 Carl Gardner March 21, 2012 at 13:00

Tim,

I take your point about majorities and minorities, but stepping back and seeing the big picture I’m not sure I can identify a major human rights abuse in the UK involving majoritarian bullying of minorities. The only thing I can imagine being seriously argued as being like that is treatment of asylum seekers. What else is there? There’s the recent changes to benefits for the severely ill and I think disabled, too, perhaps.

On every judgment being in harmony with the so-called decent majority, actually I don’t think this is an unrealistic or silly ambition.

First, I think (perhaps naively) that overwhelmingly people are decent and fair-minded: that’s one reason why I think public unease about human rights (which I also think is real, not manufactured by the Daily Mail) is not a simple blood-curdling rejection of human rights in themselves, but something more complex.

Second, I think the ECHR and ECtHR system work best when they lead public opinion to a place it’s almost ready to follow. In that sense, it’s a political sort of judgment that’s called for par excellence. take the rights of transsexuals. Yes, for many years transsexuals were without adequate rights in the UK, and a number of attempts had to be made at Strasbourg to obtain them. It was too slow in my view. But by the time Christine Goodwin succeeded in her case in (I think it was) 2002, that victory was broadly accepted in the UK, and it certainly caused no outcry. I think it’s very interesting to see how firmly embedded now are legal rights of transsexual people in the UK, and how broadly socially accepted they are. It’s not like the prisoners’ rights John Hirst succeeded in establishing. I think the comparison shows the usefulness of the “living instrument” approach combined with the margin of appreciation, and the dislocation you can get between judges and people if the margin is just ignored. I think actually advancing human rights does have something to do with court rulings that can command broad acceptance rather than immediate and widespread rejection.

Secondly, I don’t think most people would always agree with the UK government against applicants in Strasbourg. I’m not saying you said they would. But it’s often assumed they would. Again I think that’s one of the simplistic assumptions that often comes up.

Third, I think even if most judgments are acceptable, it’s perfectly legitimate to be seriously concerned about just one problematic one. If I were American, for instance, I’d be hopping mad about the plainly unfair, awful and biased Bush v Gore ruling, a ruling I think seriously damaged respect for the Supreme Court, and I’d want changes to ensure no such thing could happen again.

6 Emile Kyriakides March 22, 2012 at 00:17

Unless I’m mistaken, Damian Hirst, the former prisoner championing voting rights for prisoners, studied law whilst in prison with a very famous university (I don’t know if I’m allowed to mention its name). Although I can understand why some people may be riled over prisoners getting the vote, I cannot help but notice that there are probably more people who have their liberty and yet can’t be even bothered to go to the polling booth to cast their vote. So, if voting is so important to the nation, should it then not be compulsory to vote? I wonder how many people would be riled then. Surely there should be more concern with our electing process rather than who has the right to vote; but rather than stray down a subjective labyrinth, my impression of the TV programme was that it could have done with better editing (i.e. O’Neil’s comment at 36:40… the judiciary have the authority to overrule Parliament using the HRA?!?Really? Did I miss something whilst I was alseep? Never mind, I like O’Neil, he can be funny). My own thoughts on human rights, is that there has been a lot of political rhetoric the last few years of a domestic Bill of Rights that will be designed to replace the HRA. If that is so, is it really necessary? Isn’t the HRA a form of a Bill of Rights anyway, that alllows Parliament to retain its, dare-I-say, legendary sovereignty? In what ways would it be beneficial to the public, or, as I suspect, would it be a governmental Trojan Horse?

7 Tim ( @TimRegency ) March 22, 2012 at 11:13

Thanks for the thorough response Carl. I agree that the majority of people are decent but that doesn’t mean that they can’t be tricked by propaganda like that of the Sun and Mail etc into taking up an oppressive viewpoint. I would guess that the majority of German people in the 1930s were decent people too. I am neither a good nor interesting blogger but I do hope that I least get over what bothers me here:

http://tim-theregency.blogspot.co.uk/2012/02/nazi-uk-2010s-v-nazi-germany-1930-valid.html

There have to be good reasons why that particular ECHR set-up was decided upon after the Second World War and I am pretty sure that it was at least partly because they recognised the danger of allowing individual states, even democratic states. to unilaterally decide on human rights without some sort of ‘watchdog’ like Strasbourg.

Possible examples to answer the question in your first paragraph may include Travellers/Dale Farm, unemployed people (I’m pretty sure that workfare is ‘forced labour’) and prisoners (The UK is breaking the law by ignoring the final judgment in Hirst v UK no 2 ?)

Thanks for answering my concerns in such detail, you’re one of the few law bloggers to do so!

(I don’t think Damian Hirst was locked up, but having seen some of his works of art, perhaps he should have been.)

8 Carl Gardner March 22, 2012 at 12:40

Emile,
I agree: the HRA is precisely a “British Bill of Rights” and does indeed include a democratic override, in that Parliament can still legislate in breach of Convention rights, and the domestic courts must apply that legislation regardless of Strasbourg’s view. That’s why prisoners can’t actually vote in the UK in spite of all that’s been said. And it’s why I favour keeping it.

Fair point: if the documentary gave the impression UK judges can override Parliament, then that’s at least slightly misleading. There is a sense in which Strasbourg judges can override Parliament (the UK has a legal obligation to change the position regarding prisoners) and there are a couple of senses in which you could reasonably argue that domestic judges can seriously interfere with what Parliament wants (either by interpreting legislation in a way unintended by Parliament, under s3, or by declaring in incompatible with Convention rights under s4, which makes it very difficult politically for ministers and/or Parliament to refuse to change it).

This is the kind of complex accuracy it’s quite difficult for any documentary to get across, I think.

The problems we have, it seems to me, are mainly a result of judges, mainly in Strasbourg, being a bit incautious with the use of their own power, sometimes I think not trying hard enough to understand the domestic legal regimes they condemn (the volte face the ECtHR did in Z v UK being an example, fortunately of them realising their error; their recent calling of the UK prisoner voting ban a “blanket” measure seems to me a similar misunderstanding) and forgetting that they’re not supposed to be setting detailed policy for every country in Europe.

I think a more judicious judiciary in Strasbourg especially would reduce the controversy significantly. And I think there are signs that the current intense “dialogue” between everyone is influencing things in that way.

9 Carl Gardner March 22, 2012 at 13:26

Tim,
I agree with you about the Nazi experience and the reason for the Strasbourg court’s existence. Again, one again let me stress (I find it frustrating to have to do this, but necessary because of the way the UK debate has gone) I support the ECHR and the Strasbourg court, and I support the HRA. I think they all have an important role and I think you’re right, we’ve chosen, for good reason, a supranational system in which individual nations don’t simply decide for themselves, ultimately, whether they’re complying with human rights.

But from there (states not the ultimate deciders), it’s a very long way indeed to another possible extreme, which is that states should have all power of policy making removed from them in any matter affecting human rights, and the detailed policymaking should be handed over to judges.

I’m not saying that’s what you argue for. Nor am I saying that’s what we have. What I am doing is trying to show that an important dimension of the system is how interventionist judges choose to be. I think in some cases (Hirst is a good example, S & Marper on DNA is my other example) the judges have been too interventionist and forgotten their own very sensible self-denying “margin of appreciation” rule.

On democracy and so on, I think democracy matters a great deal, and I think it should matter to judges how democratically a decision has been made. I’m not saying every majoritarian decision must be deferred to by judges. I am saying it’s a very unwise human rights judge who forgets that genuine democracy is just as important in the protection of human rights as any court is. I hate bringing Nazi Germany into it, but since you’ve mentioned it, I think Nazi Germany is the ultimate proof of that.

It’s a bit like the EU. For it to work, you need EU institutions ultimately to apply EU rules which have primacy over national rules. That’s good, and I’m for it. What you don’t need is for EU institutions to make all the rules and deprive national Parliament of any room for policy choices at all.

On prisoner’s votes, I think the ECtHR has pretty much (if you look at the Frodl and Scoppola judgments) gone in for laying down the detailed policy on prisoners’ votes for the whole of Europe (the broadest interpretation of which is I think that any voting ban should only ever be imposed by a judge, and only in cases involving the most serious category of crimes, or election fraud). That’s too far for a supranational court to go.

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