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The many myths about the Human Rights Act

In the (limited) free time I have around being Editor-in-Chief of The Badger, I am also in the process of completing a Masters degree in Law and have a particular interest in the areas of European Union, human rights and constitutional law.

That is why, when I went to the Student Media Office the other Thursday to review the newspaper before last week’s issue went to print, I felt a deep degree of disappointment upon reading Gabriel Webber’s argument in favour of scrapping the Human Rights Act (HRA) in our ‘Big Debate’ section.

Unfortunately, Webber’s article was thoroughly misinformed, and the basis of his argument was erroneous. Thus if I’d have corrected the mistakes within it, there would have been no ‘Big Debate’ left and I would have effectively censored his views.

I am writing this because I feel that Webber’s article was very misleading, and I think it is important to explain why. All too often, the gutter press and so-called ‘expert’ panellists on Question Time mislead the public to stir up contempt around the HRA; as university-educated students, I feel that we should be rather above this and be able assess this particular piece of legislation on its genuine merits.

The major mistake that Webber makes, along with many ranting about the topic in the media, is that he does not distinguish between the laws of the European Union (EU) and the provisions stipulated within the European Convention on Human Rights (ECHR), which were incorporated into domestic law via the HRA: a British piece of legislation passed by our elected representatives in the House of Commons.

The ECHR predates the EU and its laws by quite some time and the two are entirely separate legal structures. The ECHR is maintained by the European Court of Human Rights in Strasbourg, whereas the supreme court of the EU is the European Court of Justice (ECJ), situated in Luxembourg.

The ECJ, therefore, has no jurisdiction over the ECHR.

Webber refers extensively to the “infamous” European judgement regarding Belgian car insurers, who he alleges were deemed to have “grossly violated” the ECHR by offering females a cheaper premium because they are statistically less likely to crash their vehicles than males.

In fact, the decision was reached by the ECJ on the basis that it breached the EU’s equality laws and any connection to the ECHR is less than tenuous.

There is not even an explicit right to freedom from discrimination within the ECHR: Article 14 provides a relatively narrow right to this (on the basis of a factor such as race or sex) merely in relation to the enjoyment of other rights guaranteed within it, such as that to freedom of expression under Article 10.

Since there is no entitlement to freedom of car insurance under the ECHR, it would be quite difficult for a male to sue Sheila’s Wheels for breaching his human rights.

But even if there was such a right under the ECHR, Sheila’s Wheels would not owe it to him since it is a private and not a state actor.
Human rights laws are of vertical effect only – that is to say, they are there to regulate the relationship between the citizen and the state, ensuring the latter does not arbitrarily interfere with the former’s basic rights and liberties. Therefore, they cannot form the basis of litigation between private actors such as citizens and companies.

The notion that private actors ought to respect one another’s human rights is a common one, but it is one that is based on flawed knowledge of the nature of human rights, and indeed of law itself.

The criminal and civil laws, such as ones pertaining to gender equality, exist to regulate relationships between individuals.
Webber argues strongly that such equality laws should be left to individual countries to ponder. That is a perfectly valid viewpoint, but it is not an argument for scrapping the HRA since it has nothing to do with it.

Furthermore, Webber’s contrast between the “unnecessary standardisation” of prisoners’ voting rights with the “necessary” food additive safety regulations is flawed.

The original purpose of the EU was indeed to establish a single market to facilitate trading across the continent. Hence he is right to assert that such regulatory measures can be said to be necessary in achieving this aim; however, in his assertion that this necessity should not extend to human rights laws, he neglects to explain that the matter of prisoners’ voting rights is in no way related to the EU.
Rather, it is one that revolves around the ECHR.

When this issue came before the European Court of Human Rights, it did not at all suggest that prisoners’ voting rights ought to be ‘standardised’ across the EU, partly because it would have no authority to insist upon that. Rather, it stipulated that the imposition by the UK of a blanket ban upon prisoners voting was incompatible with the ECHR.

All signatories to the ECHR enjoy an amount of leeway: a ‘margin of appreciation’ in their application of ECHR provisions to ensure respect for their cultural differences. The UK is one of very few countries to in fact operate a blanket ban; German courts, for instance, can remove voting rights as an additional punishment. The Court, therefore, insists on a bare minimum for states to adhere to, not a ‘standardisation’.

Nonetheless, Webber argues that such international human rights laws are unnecessary when a country is not under the dictatorship of the genocidal Gadaffi or Pol Pot. It is important to bear in mind, however, that such laws are relevant to a myriad of different circumstances in the lives of ordinary people, but perhaps especially ones involving the detainment of citizens by the state.

There have been over 400 deaths in police custody over the past ten years, with no convictions of police.

It is therefore quite worrying that Webber suggests that the entitlement to rights should be provided in exchange for an individual’s responsibility. Criminals, along with children, can be said to be irresponsible.

That does not mean that they should not benefit from protection from abuses of power by the state – something human rights laws provide.

It amounts, as Felicity Herrmann who provided the argument against scrapping the HRA for the debate asserted, to a dilution of our fundamental rights, which by definition need to be inalienable.

Irresponsibility, in a free democracy that respects human life and dignity, can never justify the arbitrary removal of rights.

No-one is denying that there is a hierarchy of rights; the mass taking of lives is clearly a very serious violation which the UK is not guilty of, and disputes surrounding a celebrity’s right to privacy may seem somewhat petty in comparison.

However, some of us do not share Webber’s faith in the Establishment: ultimately, the relationship between a citizen and the state is a power relationship and, like all power relationships, it must be regulated. The HRA does just that.

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One Comment

  1. Only just came across this, Kieran. I remember having a similar experience when first studying EU Law. I find the myths people peddle about the EU and the HRA exasperating. Now we have a PM pandering to the bigoted and ignorant, promising to repeal the HRA. Brilliant!. Good, job, Britain.

    Reply

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