Economics and politics - comment and analysis
27. August 2016 I Will Denayer I Countries and Regions, Europe, General, General Politics

Ever more conservative regression. Why Theresa May wants to scrap Human Rights Act

Last Wednesday (August 24), most national newspapers failed to mention on their front page the bombshell that May’s conservative government had dropped: the UK will scrap the Human Rights Act. Seemingly, the editors of The Telegraph and The Guardian somehow considered this depravity of less importance than the fact that history had finally delivered a death blow to Jeremy Corbyn. What had he done now again? He had been found sitting on the floor of a full train – and this agent provocateur wants to become prime minister!

Videos have been posted proving that there were still seats available on the train in question. Or perhaps it was another train. It is a question of national interest regardless. Is this socialist often going to lie on the floor if he is elected prime minister? It was not the Daily Mail or The Sun which provided this hard questioning to a stunned public. It seems that these are serious questions which are being asked and discussed by serious journalists.

As Kerry-Anne Mendoza rightfully remarks in The Canary, the scrapping of the Human Rights Act is the most authoritarian and regressive decision taken by a UK government in modern history (see here). What is it about and what is behind it?

  1. The Human Rights Act

The European Convention on Human Rights (ECHR) is a treaty that obliges all signatories to respect human rights. It was drawn up in 1950 in the aftermath of the Second World War. Different countries implement the Convention in different ways. The Human Rights Act is the British way of implementing the convention into domestic law. Even if countries have not implemented the Convention’s rights domestically, citizens can go to the European Court of Human Rights in Strasbourg which can issue judgments to the Convention’s signatory states. All Council of Europe governments have agreed to implement the rulings of the Strasbourg court (see here).

In 1998, the Human Rights Act incorporated the EHCR into British domestic law. In practice, the Act has two main effects. Firstly, the Human Rights Act guarantees UK citizens the opportunity to defend themselves in domestic courts under rights granted them by the European Convention on Human Rights. British courts need to follow the rules of the European Convention. There is no need to go to Strasbourg. Secondly, it requires all public bodies – not just the central government, but also the police, the NHS and local councils – to abide by these human rights.

The Act covers all the rights included in the European Convention. These rights are: the right to life, the right not to be tortured or subjected to inhumane treatment, the right not to be held as a slave, the right to liberty and security of the person, the right to a fair trial, the right not be retrospectively convicted for a crime, the right to a private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marriage, the right to an effective remedy, the right not to be discriminated against, the right to the peaceful enjoyment of one’s property, and the right to an education. The Act also imposes a duty upon governments to provide free and fair elections (see here). These rights are now being scrapped and will be replaced by a pick-and-mix of British Bill of Rights which will be drafted by the May government.

The Human Rights Act has been a target of right wing rhetoric for many years. It also became an issue during the Brexit campaign. The European Convention on Human Rights has nothing to do with the European Union. It predates it by decades. Its institutions and courts are completely separate, although ratification of the convention is a condition of becoming a member of the European Union. Every European country, except Belarus, is a signatory to the European Convention on Human Rights. Turkey and Russia is also a member (see here for more information and literature).

Council_of_Europe_(orthographic_projection).svg

Figure 1: Countries which have signed the ECHR (Source: Wikipedia).  

  1. The consequences

What will the legal consequences be for the British people if the government scraps the Human Rights Act? It breaks, formally at least, the link between British Courts and the European Court of Human Rights. In practice, this would mean that UK citizens, who want to bring human right cases under the ECHR, will have to go to Strasbourg. The recourse to British courts would be gone. This would significantly slow down such cases and make them more difficult to bring. Furthermore, at the moment no one knows if the new British Bill of Rights will continue the obligation on public authorities outside central government to uphold human rights. It is a fair guess that it would not or, at least, not to the same degree.

The Tories said in their general election manifesto that they would repeal the Human Rights Act if British courts were not allowed to overrule the rulings of the Strasbourg court. But this is political rhetoric. This will never be accepted by any of the other signatories. During the Brexit referendum campaign, May said that “It isn’t the EU we should leave but the ECHR and the jurisdiction of its courts.” She even falsely claimed the Human Rights Act had halted a deportation because the man concerned had a pet cat. This was still far from the low point of the campaign.

  1. Why the conservatives want to scrap the Human Right Act  

Unfettered by any coalition partners, Theresa May’s motivation is purportedly to entrench ‘core values’ and responsibilities in British law. Yet recent history suggests the reverse is true: in its last term, the government severely reduced legal aid, attacked judicial review and extended the use of ‘secret courts’. What is it all about?

The ECHR limits the actions of governments. Governments cannot deport prisoners to countries where torture is routinely used. Theresa May has repeatedly cited the case of Abu Qatada’s delayed deportation as reason to repeal the Human Rights Act, saying the interpretation of the law was “crazy” and calling for foreign nationals to lose their right to appeal against deportation (see here). The truth of the matter is, of course, that Qatada’s cat had nothing to do with it (see here). The twelve year delay in deporting him was the result of the British government’s failure to secure adequate assurances from Jordan about the use of torture. This is what British courts told the British government (see here). What does one individual case prove anyway? The great majority of legal experts are of the opinion that the system is not broken. Why then overhaul it?

Jason Parkinson is a Guardian journalist who took the police to court because it keeps surveillance on journalists (see here). The Metropolitan police admitted this in the meantime. However, the Met provided Parkinson with a reason: the information gathered helps them anticipating future risks of crimes of which Parkinson could be a victim. While such service may be incredible value for money, the problem is that such justification can be applied to absolutely everyone. Any form of arbitrary surveillance can be justified in this way. Parkinson won his case and got to view his records. The Metropolitan police know everything about him, his whereabouts, the people he speaks to, the people he knows. He had also been marked as “XLW” – extreme left wing (see here).

Parkinson makes another argument. The Human Rights Act is vital in halting police forces from routinely using orders to seize all published and unpublished press coverage of incidents. This means that, without the Act, in practice, the police can decide if something gets covered in the press and how and by who. A successful high court challenge to that practice in May 2012 followed the mass trawl for hundreds of hours of broadcast footage of the brutal eviction of Irish travellers (who live in trailers) by Essex police. The Human Rights Act in its current form incorporates the ECHR into British domestic law and also requires all public bodies to abide by its rules. But what when the Human Rights Act is gone (see here)?

Certain legal practices also unquestionably violate the Human Rights Act. One example is the extension of secret courts, known as closed material procedures (CMPs), into the civil courts. CMPs enable authorities to introduce sensitive information in a trial that can only be seen by the judge and security-cleared “special advocates” who represent the interest of an individual claimant.  The special advocate may not give her client precise details of the evidence and can only provide a “gist” or loose summary. The claimant may not therefore be aware of all the allegations being made (see here).

As Sarosh Zaiwalla explains, secret courts are used in terrorism cases or/and if full public exposure could endanger the national interest (or that of the allies). This is highly problematic in itself. But CMPs are now also used in employment tribunals, special immigration appeals commission (SIAC) hearings and the investigatory powers tribunal (IPT), which handles complaints about the intelligence services (see here). It is a very dangerous sliding slope. As Parkinson writes, it is also possible that, once the Human Rights Act is out of the way, the new Bill of Rights will extend closed material procedures into the main civil courts, allowing the government to exploit intelligence material to defend itself against allegations such as torture (see here).

There are other cases. A case has been brought against the Foreign Office by Noor Khan, whose father, Malik Khan, was killed in a CIA air strike in Pakistan by a drone in 2011. The UK is alleged to have been involved because it shared intelligence with US agencies.

There is also the danger that the government has applied for the use of closed material procedure in a court case in which it is a defendant could itself be kept secret. Even the most fundamental personal rights such as freedom from imprisonment, guaranteed by the ancient habeas corpus might be compromised by the new regime (see here – this old article is now highly relevant again in the context of the assault on the Human Rights Act). The fact that a court could sit in secret without giving notice to the public or the media of a forthcoming hearing has drawn comparisons with the excesses of privacy superinjunctions. The government dismisses such claims as alarmist. Shami Chakrabarti, at the time director of the human rights group Liberty warned that the security services will be able to defend allegations of misbehaviour behind closed doors by hiding behind the mantra of “national security”. All of this is in violation against Human Rights Act. This is not speculation. It is happening today (see here).

Another case is that of Bank Mellat, an Iranian bank, which got caught up in the middle of the sanctions battle between the west and Iran. The Bank took the UK government to court on the grounds that sanctions must be specific and not amount to an indiscriminate attack on people living under a regime the west happens to dislike (see here). The case would be different if, for example, the Treasury could prove that the bank had helped Iran’s nuclear program. Bank Mellat won in the Supreme Court, but only after the Treasury claimed to have rock solid evidence against the bank that they could not show to anyone for security reasons. The Supreme Court therefore decided to enter a secret court. The implications of this are major: imagine being convicted of a crime by evidence you are not allowed to see and without the opportunity to defend yourself. The Court eventually ruled in favour of the bank, but it did not make a lot of a difference. Only days later, the parliament pushed through the Justice and Security bill, allowing the same secret courts used against foreign companies to apply to anyone living in the UK (see here).

It is true that the number of civil cases affected is likely to be small, but the expansion of the principle of closed material procedures is wrong regardless. A great many cases against the British government that arise from the Troubles in Northern Ireland are still being prepared by lawyers and the disclosure that British special forces were involved in the mass detention of Iraqi civilians following the 2003 invasion, means that the government cannot be sure how many arguable claims it could face in the future as a result of that conflict (see here).

Today, no one of the public knows what the British Bill of Rights will bring, but there is little doubt that it will be regressive. May herself has a poor record of upholding civil liberties and human rights. She has already pushed forward the Investigatory Powers Bill. As The Canary reported:

“(The bill) is designed to secure immense surveillance powers for the UK’s security services, and other public bodies. The proposals include allowing bulk interception of communications, bulk collection of communications data – meaning ‘metadata’ which is essentially the data about data – and bulk equipment interference – aka hacking” (see here).

Passed on 7 June, the Snooper’s Charter has been widely criticised as being an ineffective tool for combating what it claims it wants to combat (i.e. terrorist activities). As Bella Sankey, Director of Policy for Liberty, explains:

“This Bill would create a detailed profile on each of us which could be made available to hundreds of organisations to speculatively trawl and analyse. It will all but end online privacy, put our personal security at risk and swamp law enforcement with swathes of useless information” (see here)

The prospect of the new Bill of Rights increases tensions further between England and Scotland. Nicola Sturgeon, Scotland’s prime minister, promised that the Scottish Government will block the UK Government’s attempt to repeal the Human Rights Act, calling the scrapping of the Human Rights Act “inconceivable” (see here). There is also no doubt that the Catholics in Northern Ireland do not want an English Bill of Rights.

The scrapping of the Human Rights Acts need to be seen in a wider context of surveillance, secret courts, forced labour (as I documented here), attacks on the freedom of speech, demonstration and protest, racist rhetoric (as well as a five-fold increase in racially motivated crimes since the Brexit) and increasing irrationality, such as the mob walking the streets shouting to immigrants to go home. The conservatives want the Human Rights Act out of the way because their policies cannot be reconciled with many of the basic human rights that this Act guarantees. The conservative counterrevolution has always been a fundamentally regressive movement. It seems that we reached a new stage in this evolution and certainly not only in the UK. Highly authoritarian systems implement policies favouring the rich and leaving the ‘rest’ far behind. This cannot go on. There will be a reaction. The scrapping of the Human Rights Act anticipates this. Demonstrators and protesters will be criminalised. Journalists, activists and, who knows, perhaps most or all of us, are under surveillance. There is little privacy left and certainly none on the internet. As the revelations about government snooping make clear, there will be no dearth of information available to help secret courts convict anyone the government wants to see convicted. In the case of terrorism, it can, in specific cases, be reasonable to argue that threats facing the UK warrant suspensions of open justice, but it is absurd and dangerous to allow this judgment call to be made by politicians.

human-rights-act

Picture 1: Liberty campaigning for the Human Rights Act. Source: Liberty.org. 

  1. A word about the broader social context

Theresa May is also cooking up the plan to slash employment rights and cut wage for workers in poorer areas  (see here). George Freeman, made head of May’s policy board last week, believes people working in new firms should have no employment rights, no paid leave and no minimum wage. Corporation tax should be 10%, after the first three years in which new corporations would pay no tax and would be exempt from almost any employment regulation. John Healey, a former Labour housing minister, presented a projection saying that if May does not abandon her cuts to housing benefits (£1 billion in total), almost 80.000 families in England face the prospect of becoming homeless by 2020. The projections come after an all-party committee of MPs said government austerity measures have increased homelessness in the UK by as much as 30 percent. Earlier this year, the Rowntree Foundation found that more than 1.25 million people in Britain do not have enough money for food, clothes, heating, shelter and toiletries (see here). What is this else than the accumulation of dispossession and disempowerment?

UK health inequality story image

Picture 2: In one of the richest countries on earth, homelessness and destitution are not considered violations of human rights (Source: Google Images). 

Little wonder that the rich and the state feel threatened by an increasing part of a population made restive by corruption, ineptitude and mounting repression. The security and surveillance apparatus is destroying investigative journalism and judicial oversight to address abuses of power. Organised dissent will be criminalised and criticism, however tepid, will be treated as an act of subversion. The goal of dictatorial regimes is to create a society in which people do not think and certainly not about self-organisation and rebellion (see here). They are out to create the persona of what Brecht called the political illiterate – the man who is so stupid that he is proud in saying that he hates politics, while he remains blissfully unaware of the consequences of his political ignorance. In the meantime, irrelevant gossip and childish trivia mask the fact that the political system ceased to work in democratic ways. Patriotism is another way to mask this fundamental fact. The English can talk about their Englishness as much as they like, not many square centimeters of Englishness will be found which are also not either French, German, Belgian, Irish, Jamaican, African, Jewish, Indian, Pakistani and so on. This diversity promotes pluralism and open debate on substantive matters. Instead, we are now looking at the emptiness of our non-existing “essence,” while in the meantime our governments are making us increasingly powerless, all in the name of freedom, of course.