Getting down with human rights

The British Institute of Human Rights has released a short interactive eBook that purports to act as an explainer of both human rights and the Human Rights Act.

 

It isn’t very good, making many of the lazy claims and assertions that I have criticised in the past.

 

So, we are told that the purpose of the institute’s work is to “achieve a society where human rights are respected as the cornerstone of our democracy” (p 4). Almost the entire point of human rights law is to be anti-democratic (and a good thing too). Governments may attain power through impeccably democratic means, but there are values that should trump what they then may do, regardless of the size of their mandate. Democracy and human rights are in tension with one another.

 

History

We are told that “Modern human rights first became legally defined in the Universal Declaration of Human Rights in 1948”. This is nonsense. Before World War II most states had embodied into their constitutions a list of rights that were guaranteed that closely resembled those in the post-war instruments. Admittedly, there were variations between states, so that the Soviet Union guaranteed work, rest and leisure in a way that the constitutions of other non-communist states did not. These divergences, and the current divergences between the various international human rights instruments, are embarrassing for those, such as the BIHR, who wish to assert that human rights are “universal” without further argument. As I have said before, there are some human rights that do qualify as universal, applicable to all people in all times and places, but this small class does not bear a very close relation to those contained within the various instruments that embody the law of human rights.

 

Fundamental

We are told that “Our Human Rights Act is the most important law protecting our human rights here at home” (p 8). If we took such claims seriously, the conclusion would be startling. If our human rights really are, as claimed, universal and minimal (p 5), did we live in a state of barbarity before 2000? Was there nothing to prevent state officials from torturing me, or to guard against my being detained arbitrarily by the police, or to stop you from burning down a farmer’s crops?

 

The answer is of course not. We should be much more alarmed if the state proposed to abolish the law of trespass to the person, or to annul swathes of the criminal law, or not enforce property law, than by any proposals to amend the Human Rights Act (however misguided the latter may be). The universal, basic and minimal set of rights that we actually have are so universal, basic, minimal and (consequently) uncontroversial that few of us spend much time thinking about them. Indeed, the idea of their abolition is so preposterous that no political party would ever contemplate doing so. The Human Rights Act is in a different category, and needs rather more argument to be successfully defended.

 

An illustration of this confusion is given in the first example at page 13. We are given the story of Jenny who was voluntarily at a mental health hospital, but then wished to leave. We are told that she had a right to liberty under article 5 of the HRA (what is meant is the ECHR incorporated by the HRA). This is of course true, but would not differ in any way if the Human Rights Act were abolished tomorrow. Anybody who detains me against my will without statutory authorisation commits the tort of false imprisonment. And has done in England for centuries.

 

We are then told that  because of the duty to protect Jenny from harm under Article 3, the staff accompanied her when she went out. Again, absent the Human Rights Act is it true that hospital staff could just wash their hands of the mentally ill they have admitted and let them wander the streets? No again. By admitting the patient  the hospital assumed a duty of care towards her. (There is also probably, although I do not know the details, a statutory duty on health officials even absent the general law position).

 

The portrayal of this easy and obvious case as requiring  the Human Rights Act to achieve the result is simply untrue. This is not true of all the later examples given (see pp 22-23), but the others are much more controversial.

 

Private life

A nice illustration of how human rights law works, and why it has proven so controversial, is then given (pp 16-17): the decision of the European Court of Human Rights in S and Marper (It is always good practice, not followed by the BIHR, to provide citations and links so that readers can read the case for themselves. The BIHR don’t even provide the name). Here the European Court of Human Rights concluded that retaining biometric data (eg DNA samples) of those arrested but not convicted of any offence constituted a violation of the right to private life under Article 8. In so deciding they took a different position to that taken at every stage by the United Kingdom’s courts, where the issue had been litigated up to our ultimate appellate court (at the time the judicial committee of the House of Lords).

 

I would urge those interested to read the European Court of Human Rights’ judgment and to search for the reasons they can discern for concluding that there was a right violation (I think the crucial paragraphs are 71 and 72).

 

We are told that such information might conceivably be abused in some objectionable unspecified way as yet undiscovered, and that such information is “sensitive” and “unique”. And that is it.

 

Our basic minimal set of rights are required because of the freedom all of us must have from interference by others. Law is required to give this determination, and in order to give all of us the space in which to live our lives. In what way did the government’s retention of this information about the claimant set back his ability to live his life as he liked? Clearly he preferred not to have this information held about him, and indeed may have been upset by it. But no theory of legal rights can sensibly maintain that these are sufficient reasons on their own. Why was this data different in kind from other forms of data that the government and other holds about us?

 

There are good crime prevention reasons why the state should keep biometric data about citizens. It may be that there are good reasons why those who have been suspected, but not convicted, of a crime should not be singled out, but the ECtHR’s position seems to rule out a wider database.

 

Indeed, even if one were to think that on balance the state should not retain such data, the issue is the different one of whether the decision to do so was so bad as to constitute a right violation.The chosen balance by the UK legislature (and its courts) is not to my eyes obviously wrong, even if I might not have made the same decision myself given dictatorial powers.

 

Those who wish to defend human rights must up their game. Vague assertions about the universality of human rights will not do. Nor will giving examples that the writers consider to be self evidently right, without further argument, convince anyone but those already onside.

 

 

 

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