On its 15th birthday, Sean Humber wishes many happy returns to the Human Rights Act and recognises that it faces many of the same problems as teenagers up and down the country.
Well Happy Birthday then Human Rights Act, 15 years-old today. Now a teenager and don’t we know it – its been wonderful to see you grow and mature and beat the bullies
It was in 1948, in the aftermath of the atrocities of the Second World War, the newly formed United Nations adopted the Universal Declaration of Human Rights (UDHR) which set out the rights to which human beings are inherently entitled - such as the right to life, the right not to be tortured, the right to a fair trial, freedom of thought and the right to free elections.
The European Convention on Human Rights (ECHR) then gave effect to the UDHR in a European context, with the Convention came into force in 1953. Then you arrived into the world. . The Human Rights Act, which came into force 15 years ago today on 2nd October 2000, gives effect to the human rights set out in the ECHR in UK law. You require all public bodies to act in a way that respects an individual’s Convention rights.
Crucially it allows individuals to bring human rights cases in domestic courts and no longer have to trudge slowly and expensively to Strasbourg, to argue their case in the European Court of Human Rights.
You are the glorious love child of Eleanor Roosevelt, who chaired the UDHR drafting committee, and Sir David Maxwell Fyfe, a future Tory Lord Chancellor and Home Secretary, and key architect of the ECHR.
All those ill informed commentators and politically motivated detractors are very disrespectful to these individuals and all those involved in developing human rights over the last 70 years.
Yes, you hang out with ‘foreigners’, ‘prisoners’ and ‘terrorists’ (suspected or otherwise) - and for good reason. Unpopular as they may be, these are the most legally vulnerable groups in our society who are often at the sharp end of oppressive action by the State. Mainly because they rely on the public to be, at best, indifferent to their plight.
However, it is important to all of us that the Government has been told it cannot imprison suspected terrorists indefinitely without a criminal charge or conviction.
Similarly, it is not somehow being soft on crime to say prisoners have a right to private correspondence with their lawyers as everyone else.
Furthermore, it is also important to remember that you are relevant to the lives of many others including, to give just three examples, those with disabilities wanting an input into their care arrangements or vulnerable patients in Hospital at risk of suicide or elderly residents in care homes receiving inadequate care.
The important point is that we all have these human rights by dint of being human. They can’t be bought or sold or somehow only attach to the morally deserving (whoever the Government at that time decides these should be). They are there to protect all of us – the good, the bad and the ugly.
Your Behaviour in the media
You have been blamed for all of the ills in our society, quite often by cynical politicians who do know better. When Theresa May fumed, to an adulatory party conference, that the HRA had prevented the deportation of an illegal immigrant because of his pet cat, it took a spokesperson from the normally taciturn Royal Courts of Justice to say that this was simply wrong.
Ditto Serial killer being allowed hard core porn and Sky TV … because of HRA, convicted rapist being released and raping again … because of HRA, judges not being able to send criminals to prison for life … because of HRA, police not being able to circulate ‘wanted’ posters … because of HRA, terrorists being able to claim asylum in UK … because of HRA.
There is a definite theme developing here.
All demonstrably wrong as the stories were either simply untrue or the decisions had nothing to do with the HRA. All widely reported (and re-reported) in our press.
In the light of such demonisation, is it any wonder that you are held in such contempt by so many in this country
The language you use
As a teenager, you’ve got to have your own language, innit bruv. After an initial wariness, judges (whose legal patois had previously been limited to obscure Latin phrases and the odd half-remembered Shakespearean quote) have proved surprisingly adept at getting down with the kids in relation to concepts such as ‘positive obligations’ and ‘proportionality’ that are then incorporated into the legal mainstream. Our legal system is the richer for it.
Like most teenagers you do have a keenly developed sense of right and wrong unsullied by the moral compromises and contortions of their elders and ‘betters’.
You introduced a list of rights including the right to life, not to be tortured, to liberty, to a fair trial, to a private life, to freedom of religion etc and allows our Courts to consider afresh whether the action of an often over-zealous State are unlawfully curtailing the rights of the affected individuals.
Most people would probably consider that keeping a warning that a person had received as an 11 year old for stealing a bicycle on the national police database indefinitely, so stopping them getting a job as an adult was unacceptable.
Happily, our Supreme Court, using the HRA, agreed and allows the non-disclosure of most past and minor cautions or convictions.
You are in touch with a society that is always changing
Teenagers are probably the section of society most attuned to, and least afraid of, change.
The interpretation of HRA rights, and what represents a breach of these rights, also changes over time. While issues such as in vitro fertilisation and surrogacy are likely to have been far beyond the comprehension of those originally drafting the ECHR, it is surely right that the interpretation of the right to respect for family life takes these advances into account. Similarly, attitudes in society change.
Views on sex, race or disability discrimination or environmental protection have thankfully changed dramatically in recent decades.
You do sometimes get things wrong
And whisper it softly, but, because Judges are not infallible, HRA judgments may occasionally be wrong (as with judgments in every other area of law). However, is that a reason to get rid of you? Babies and bathwater come to mind. Doing that, Mr Gove, really would be behaving like a truculent teenager.
So, Happy Birthday HRA - the country has been a fairer and more equitable place since you have been around.