Chris Grayling’s announcement to scrap the Human Rights Act 1998 if his party is re-elected pleased the tabloid press and its followers, oblivious to the realities of the work of the Strasbourg Court and the implementation of its decisions.
What emerges from the proposal and the comments made since, is that the numerous legal errors that surround the discussion, principally on the side of the ‘abolitionists’, are deep-rooted and that this needs to be combatted with a well-informed discussion.
According to the policy document – which, if viewed skeptically, one might call a populist piece rather than a serious proposal – the Strasbourg Court has ruled that, ‘murderers cannot be sentenced for life’. This, of course, is wrong, as the court in Vinters & Ors v UK merely said that life sentences need to be periodically reviewed. Grayling’s plans are even more troubling because they not only pander to misconceptions about the Human Rights Act, but are also plagued by the fundamental misunderstandings that ground the disdain of those who are ‘concerned about human rights’.
It simply isn’t true for instance, and never has been, that the Supreme Court is bound by the Strasbourg Court. The United Kingdom is only bound by the Convention itself along with the cases the UK is party to. Nor is it a ‘legal fact’ that where infringements are found the European Court can ‘order’ the UK to change the law. It is just ‘common sense’ to do so, in order not to be in breach of existing international obligations.
In light of these glaring misbeliefs, there is strong need for lawyers to engage in the debate to dispel these errors. This is true now more than ever before, as somehow, if the proposals are to be believed, the existence of rights are thought of as preconditioned on responsibilities. It is quite unclear how the balancing exercise between the two are to be achieved. Does the failure to fill-in one’s tax returns disqualify one from the right to a fair trial, or will the absence of charitable activity mean that one will temporarily be unable to assert one’s right to liberty?
Furthermore, if ‘responsibilities’ are just a shorthand for ties to the UK, how would a British Bill of Rights cater for the social welfare provision and victim protection of those who have been trafficked to this country, or those recent migrants who are victims of domestic violence and now wish to start a new life?
The problem as it seems, is with the view held by a section of the public who see the Human Rights Act as piece of legislation which accommodates the undesirables. In reality, it provides protection to all of us, evidenced by the experience of talk show host Jon Gaunt, who called Shami Chakrabarti ‘the most dangerous woman in Britain’ for invoking arguments under the Human Rights Act, yet later sought to utilise the protection afforded to him by Article 10 of the European Convention.
The Government lost two judicial review proceedings within the last month relating to its proposals to the changes in legal aid. The legal profession now needs to turn to highlighting the injustices that result from this proposal, especially when it is argued on erroneous grounds.
Bence Leb is a legal caseworker at the AIRE Centre where he advises on EU rights