European convention on human rights is part of Britain's DNA

European convention on human rights is part of Britain's DNA

The convention is as important now as at its inception 60 years ago. Human rights will not be downgraded under the coalition

Tom McNally, Guardian Law, Sunday 21 November 2010 15.00 GMT

'The UK proposed the creation of the convention at the end of the second world war – largely at the suggestion of Winston Churchill.' Photograph: Keystone/Getty Images

This month marked the 60th anniversary of the European convention on human rights. The passage of time has not tempered the political debate about human rights – as the introduction of the Human Rights Act a decade ago highlighted. Ever since the introduction of the act, which gives effect to the convention in UK law, popular misconceptions and criticisms around human rights and the convention have multiplied and continue to endure.

However, the European convention on human rights is part of our DNA. It is not "someone else's law". It was never imposed on Britain. The UK proposed the creation of the convention at the end of the second world war – largely at the suggestion of Winston Churchill. It was designed to ensure that the atrocities and mass murder committed by totalitarian states before and during the war would never be repeated. The rights contained in the convention can be traced back to Magna Carta and to other laws long established in the UK. Indeed, it has well been said that the convention marked – and continues to mark – "a vital codification of the common law, not its repudiation".

Consequently, there will be no downgrading of human rights under the coalition. On the contrary, we must continue to promote and embed the living principles the convention contains – that is why the coalition agreement made it clear that our commitment to the European convention on human rights is uncompromising. It said: "We will establish a commission to investigate the creation of a bill of rights that incorporates and builds on all our obligations under the European convention on human rights, ensures that these rights continue to be enshrined in law, and protects and extends liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties."

There is no contradiction in being a supporter of the convention and at the same time wanting to re-examine the way we give effect to it in the UK courts via the Human Rights Act 1998. No law is perfect. That is why we intend to establish a commission during 2011 to look afresh at the way rights are protected in the UK, to see if things can be done better and in a way that properly reflects our legal traditions.

These plans are also a critical component of the coalition's civil liberties agenda, which will restore the rights of individuals after a decade of encroaching state power. The convention is to be celebrated as a central part of this plan.

The future of the convention is, in my view, exciting. By focusing on how recognition of human rights can contribute positively to people's personal freedoms and to the development of our communities, we contribute to the development of a better understanding of these rights and freedoms.

Sixty years on from its inception, the convention is as important now as it was to postwar Europe. We can only hope that its next 60 years will bring as many benefits to the people of the UK as its first.

Comment:

"European convention on human rights is part of Britain's DNA".

Agreed. It also forms a part of the other 46 Council of Europe countries, other 26 countries in the European Union, and the other 191 countries in the United Nations. So why is Lord McNally the Minister of State for Justice at the Ministry of Justice and deputy leader of the House of Lords trying to sell to the general public a package as though he is the dodgy Arthur Daly or even dodgier Del Boy Trotter?

"The convention is as important now as at its inception 60 years ago. Human rights will not be downgraded under the coalition".

Agreed as far as the first sentence is concerned. However the Tory party prior to the general election did pledge to scrap the Human Rights Act 1998 (because it was falsely claimed to be foreign, and favour criminals above the law abiding and victims of crime), and replace it with a British Bill of Rights. Previously, Kenneth Clarke, Secretary of State for Justice and Lord Chancellor, dismissed this as xenophobic nonesense (which it is). Whatever the original intentions of Labour under Tony Blair, the reality is that a watered down version of the European Convention of Human Rights entered our statute books. Given that the ECHR, as Kenneth Clarke recently told the Joint Committee of Human Rights, is the floor upon which to build human rights, it begs the question why the ECHR was not simply incorporated into domestic law lock, stock and barrel? This dilution has meant that the UK was set on a collision course with the Council of Europe. Days ago the European Parliament attacked the UK Parliament for its failure to implement the ECtHR's decision in relation to DNA retention and prisoners votes. As it stands, this is evidence, under the coalition, that for some their human rights have been downgraded from floor level to basement level.

"This month marked the 60th anniversary of the European Convention on Human Rights. The passage of time has not tempered the political debate about human rights – as the introduction of the Human Rights Act a decade ago highlighted. Ever since the introduction of the Act, which gives effect to the Convention in UK law, popular misconceptions and criticisms around human rights and the Convention have multiplied and continue to endure".

As a pioneering jailhouse lawyer taking a Prison Law Inside Out approach, it was frustrating to read: "According to Lord Wilberforce, a prisoner 'retains all civil rights which are not taken away expressly or by implication' (Ramond v Honey (1982)). Shaw, LJ states similarly in St Germain (No.1)(1979); 'Now the rights of the citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision'" (PRT 1988). In the Control Unit case, Williams v Home Office (No.2)(1981), it was held that the Convention was not binding in English law, and the Court was looking for basement level human rights for prisoners because it was deemed that they were less eligible for the ground floor level of human rights under the Convention.

By not incorporating the Convention when the UK ratified it 60 years ago, it meant that we are 60 years behind the more civilised countries in Europe. That's a lot of catching up to do. So once the HRA came into force I was ready with a load of legal challenges which the authorities had not anticipated, and the right wing media went into hysteria mode claiming that the Act was a "criminals charter". Naturally, some MPs knee-jerked and offered some off the cuff remarks which were not helpful because they only displayed their ignorance of the law. These MPs need to button it or brush up on the law, and the courts or Parliament must curb the media's excesses in this area because whipping up hysteria has no place within the freedom of the press. It has been argued that the media is frightened by Article 8 privacy and has a hidden agenda. What is needed here is honest and factual reporting by the media on the issue of human rights, and honesty on the part of MPs.

"However, the European convention on human rights is part of our DNA. It is not "someone else's law". It was never imposed on Britain. The UK proposed the creation of the convention at the end of the second world war – largely at the suggestion of Winston Churchill. It was designed to ensure that the atrocities and mass murder committed by totalitarian states before and during the war would never be repeated. The rights contained in the convention can be traced back to Magna Carta and to other laws long established in the UK. Indeed, it has well been said that the convention marked – and continues to mark – "a vital codification of the common law, not its repudiation"".

One has to wonder why "The Coalition has spent more than £200million in just five months on consultants, PR and marketing," just for Lord McNally to come out with his DNA analogy gaffe? Two days ago the European Parliament attacked the UK Parliament for its failure to implement 2 ECtHR decisions, one of which relates to DNA!:

Prisoner voting rights (Hirst (No.2) v. UK – Grand Chamber)) ;
Retention of DNA and biometric data (S. and Marper v. UK – Grand Chamber);

It is somewhat disingenuous to claim that the Convention is just about preventing totalitarian regimes committing genocide. In the Hirst No2 case, the challenge went to Human Rights, Democracy and Rule of Law, and their absence in the UK means that in the eyes of Europe the UK is not a liberal democratic country but is instead a totalitarian regime. One author has eloquently explained how the ECHR, and HRA and the Common Law can actually work in harmony. In this way, those who proclaim everything about Europe is bad and only the UK is good can be satisfied. The UK has first to rise up to the European level of minimum standard of human rights.

"Consequently, there will be no downgrading of human rights under the coalition. On the contrary, we must continue to promote and embed the living principles the convention contains – that is why the coalition agreement made it clear that our commitment to the European convention on human rights is uncompromising. It said: "We will establish a commission to investigate the creation of a bill of rights that incorporates and builds on all our obligations under the European convention on human rights, ensures that these rights continue to be enshrined in law, and protects and extends liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties"."

It is only days ago that Lord McNally sat next to Kenneth Clarke as witnesses before the Joint Committee on Human Rights, and Clarke told the JCHR that he was attempting to downgrade human rights in the cases of murders, rapists and paedophiles! That is, deny these human beings their minimum human right to the vote! It is here that Clarke spoke about the floor and then went on to dig himself into a large hole at basement level for some humans. There is no need for a commission if the Convention with all its Aticles is incorporated into domestic law, and the courts apply them rather than seek to apply a political decision to a legal problem. A better understanding of the issues does not come with government spin. All this produces is a pile of bullshit which people cannot be bothered to plough through to get to the straw of truth in the middle.

"There is no contradiction in being a supporter of the convention and at the same time wanting to re-examine the way we give effect to it in the UK courts via the Human Rights Act 1998. No law is perfect. That is why we intend to establish a commission during 2011 to look afresh at the way rights are protected in the UK, to see if things can be done better and in a way that properly reflects our legal traditions".

This may hurt but our legal traditions are stuck in the past and European law is all about the present and future. Europe is saying to the UK you cannot be both in and out of Europe at the same time. Cherrypick the good bits and leave the bad bits. It's all or nothing; in or out. It's make up your mind time. Presently, the pressure for change in the UK is European led. The UK needs to acknowledge it is only an island off the coast of Europe, just like Hawaii is to the US. The UK cannot survive on its own, it has the choice either fully integrate with Europe or become a satellite state of the US. If the latter option is taken, in my view, we would be no better than an aircraft carrier for US warplanes to take off and land whilst engaging in some foreign war.

"These plans are also a critical component of the coalition's civil liberties agenda, which will restore the rights of individuals after a decade of encroaching state power. The convention is to be celebrated as a central part of this plan.

The future of the convention is, in my view, exciting. By focusing on how recognition of human rights can contribute positively to people's personal freedoms and to the development of our communities, we contribute to the development of a better understanding of these rights and freedoms.

Sixty years on from its inception, the convention is as important now as it was to postwar Europe. We can only hope that its next 60 years will bring as many benefits to the people of the UK as its first".

The truth is that the coalition does not have any plans. True, Labour encroached upon civil liberties but I did not hear loud voices of opposition from the Tories. It was all 'war on terror' and 'protecting the public' and nobody stopped to look whether these were meaningless concepts. You can only have a war with another state not a concept! The public are not protected when up to 80% of offenders re-offend after leaving prison. The Convention will only bring benefits when the government and society accepts that all human beings are equal in terms of human rights. This is not a balancing exercise between prisoners and victims of crime. Human rights accrue to both prisoners and victims of crime. By removing prisoners human rights it only teaches them that it is ok to abuse victims human rights. The UK must set a good example to follow. It is a national disgrace that we are 60 years behind the civilised countries in Europe on human rights.