The Conservatives will replace the Human Rights Act with a US-style Bill of Rights if they get into power, Tory leader David Cameron has promised. He says current legislation is inadequate and hinders the fight against crime and terrorism. He believes a British Bill of Rights would strike a better balance between rights and responsibilities.
This is a bit confusing – nowhere in the US’s Bill of Rights does it mention “responsbilities”; nor does the German Basic Law (which Cameron cites). Both are basic documents outlining the essence of particular rights, just as the European Convention on Human Rights does.
The choice of name “Bill of Rights” are clear; one of the fashionable things to do is paint the ECHR as a foreign, European document, and contrast it with the American Bill of Rights as being more closely related to our own Anglo-Saxon legal framework. This is a dangerous deception the United Kingdom was one of the original signatories to the ECHR and when it was drafted in 1950, a good number of the people drafting it were British lawyers; the document draws on many of the rights enshrined in the Bill of Rights, and strongly acknowledges the influence of the 1948 Universal Declaration of Human Rights, chiefly drafted by a Canadian, John Peters Humphrey, and promoted by Eleanor Roosevelt, the former United States First Lady.
Nor does the ECHR bind authorities’ hands as much as you’d think; in fact it’s the concise, simply-worded, absolutist language in the American Bill of Rights which has provoked more legal problems over its interpretation (and has in turn enabled President Bush to invoke the right to interpret the constitution any way he sees fit) while the ECHR carefully spells out the (many) get-outs that the authorities have (and the ones they do not have) when it comes to obeying human rights law (crime, national security, prevention of disease etc.). It is this modern document which recognises the difficulties in running a nation state and dealing with threats to security, and when human rights have to be limited or curtailed; they spell out how this should be done, and insist on due process and transparency in these manners.
What actual objection does Cameron have to the HRA? He doesn’t critique much of the actual law itself, but instead spends most of it on how organisations are frightened of breaching it, such as the example of the police not releasing “wanted” posters in case it breaches the right to privacy. This is absurd; there has never been any court case ruling that wanted posters are in breach of the HRA; it is more a case of institutional ignorance and misunderstandings than any problem with convention or act itself.
The only specific legal judgement relating to the HRA that Cameron can quote is that related to the deportation of terrorist suspects to countries where they might be tortured:
One of the most obvious ways in which our Government can help prevent terrorist outrages in Britain is to deport foreign nationals who threaten our security. It is clear that we should have the right the right to live here to those who want to do our country harm. Yet the Government is finding it increasingly difficult to do this.
The lengths to which the authorities have to go even to detain them are so great that many serious suspects are allowed to remain here at liberty. Think about the message that sends to terrorists and their supporters around the world. It is practically an invitation for terrorists and would-be terrorists to come to Britain, safe in the knowledge that whatever crime they may have committed in their home country and whatever suspicion there may be that they might be planning a terrorist attack in the UK or elsewhere they won’t be sent back to their country of origin and may not even be detained, because the process is so complicated and time-consuming for the Government.
However, terrorist acts here tend to have been performed by British nationals, not foreigners; three of the four perpetrators of the July 7th bombings were British-born and the other (Germaine Lindsey) moved here from Jamaica when he was five months old. Similarly, Richard Reid, the “shoe bomber”, was born in Bromley. Withdrawing human rights protection for foreign suspects (who despite our reservations, have not been convicted of any crime) would not have prevented such atrocities from occurring. If the authorities are so sure that foreign suspects in custody are dangerous, then they should try them – there is a raft of anti-terror laws that make even the weakest possible connection to terrorism a triable offence.
So Cameron’s cunning solution is to provide a basic British domestic rights law, much like the German Basic Law, to which the European Court on Human Rights can take as a starting point. However, this would still not revoke our obligations to the Convention on Human Rights (Cameron is not proposing to withdraw from the convention), which would ultimately take precendence over any such Bill of Rights (as it does in Germany), so all it would ultimately do would be add another layer of legal tangle.
If Cameron were serious about ensuring liberty and security and promoting British values and freedoms, he would be pushing for greater recognition of British contributions to natural rights and human rights law. He would campaign for greater understanding of the HRA in British public life, to make sure police forces and other authorities have a better understanding of their obligations and capabilities under it, to ensure that unfounded “fears” about imaginary limitations on powers are quashed. And as for the “dangerous foreign terrorist suspects” that we are supposedly under threat from, he should support the due process of law. Terrorism is a horrible crime but it is still just a crime and should be treated like any other. Our fundamental human rights are strong enough not to be redefined or repealed by a few acts of criminality, no matter how heinous. If there is enough evidence to suggest these suspects are terrorists, then they should be tried and convicted as such. Washing our hands of them when we are uncertain of their guilt is the cheap and easy way out; any leader who styles himself brave enough to stand up to terrorism should also be brave enough to live up to the values he is so vociferously keen to protect.