Dominic Raab, recently installed as justice secretary and Lord Chancellor, has said he will end the “nonsense” of the Human Rights Act, claiming it has allowed criminals to evade justice.
Raab did not go so far as saying the Act should be repealed, rather than that “common sense” should be introduced into the system. Some believe he was put in place to ensure this happened, replacing Robert Buckland, his predecessor, who was less keen on reform. And a rather better qualified lawyer.
The Human Rights Act 1998 came into force in October 2000, part of a series of reforms by the Blair/Brown government. It aimed to ensure that the rights in the European Convention on Human Rights (ECHR) are incorporated into British law.
These include the right to life, the “freedom from torture and inhuman or degrading treatment”, the “right to fair trial” and to free elections. The whole thing is enforced by the European Court of Human Rights (ECHR), to which appeal can be made if you believe your human rights have been contravened.
An end to the UK’s membership of the European Court of Human Rights?
Late last year the UK agreed that, despite Brexit, it was still a participant to the ECHR. Now the government would like to go back on that pledge, replacing it with an ill-defined British Bill of Rights. Obviously, having left the EU, there is no reason why the UK should be bound by supra-national European institutions such as the ECHR. This is the clear message from Raab’s comments – that the whole thing is skewed against the UK’s national interests and in favour of the ‘EU super-state’.
One massive problem. The ECHR and the ECHR – sorry, the initials are confusing – are nothing to do with the EU, contrary to the general belief. The Convention was created in 1950 in the wake of the Nuremberg Trials after the Second World War.
It was drafted by the newly formed Council of Europe, whose members have 47 member states. Not all of them are part of the EU, though some confusion surrounds this and some wrongly believe they are one and the same. It does not help that both share the blue and yellow EU flag.
The Nuremberg Trials and the European Convention on Human Rights
The Convention was drafted because of a problem the prosecuting lawyers in trials of Nazi war criminals had. The defendants claimed that their part of the atrocities of the War and the Holocaust were not actually against the law at the time, as drafted by the Nazi regime in the 1930s. They were not therefore guilty.
The Soviets, it must be said, who lost 20 or 30 million citizens to the Great Patriotic War, some of these down to their own incompetence or lack of concern for their people’s lives, had little time for such legal casuistry. The Allies, particularly the Americans, were concerned they would be seen to be pursuing “victors’ justice”.
They went back to an idea that had arisen in the religious ferment of the late Middle Ages, so-called “Natural Law”. Hugo Grotius, a philosopher from Holland and one of the greatest thinkers of his time, was one of those who came up with the idea that there were certain basic rights that could not be supplanted righteously by national governments or the Church.
He said: “Now the Law of Nature is so unalterable that it cannot be changed even by God Himself.” This was dangerous stuff, and he had a hard time of it.
The Convention fell back on this philosophical idea. There are certain rights that are so fundamental that if the nation state tries to remove them, a supra-national body, the Court based in Strasbourg, will step in and protect the rights of their citizens. (The American republic, post the War of Independence, adopted something similar in the Constitution, the right to life, liberty and the pursuit of happiness.)
Dominic Raab: “I don’t believe in economic and social rights”
As I said, the UK signed up to the Convention in 1998. The government would now like to amend or replace it. Raab himself said in 2009 that “I don’t support the Human Rights Act and I don’t believe in economic and social rights.”
That seems chilling, although it is not as if we have not been warned. The government wants to replace one of the protections we have against Nazi and Eastern European tyranny with… what?
Meanwhile, Priti Patel, the Home Secretary, said she would push ahead with plans that would criminalise certain protests that were previously legal, a move that would probably be in contravention to the Convention as it would be enforced by the Court in Strasbourg. Except that this would no longer have jurisdiction.
Now would be a good time to start to worry.