Wednesday, 27 May 2015

Human Rights Act? European Court of Human Rights? What's that all about then?

What have the Human Rights Act, the European Court of Human Rights, and the European Convention on Human Rights got to do with each-other? Aren't they all about Brussels stopping us from deporting foreign paedos...or something?

OK, a bit of explanation is in order.

It’s 1948.  World War II is over, and everyone is horrified at the crimes against humanity committed by the Nazis.  So the United Nations General Assembly gets together and decides to adopt a Universal Declaration of Human Rights.  This is the first attempt at a global expression of rights to which all humans are entitled.  The idea is that everyone who signs up to it agrees to abide by it.  They put it to the vote. 48 members of the UN General Assembly are in favour, none are against, and 8 abstain.

The abstentions are for various reasons - South Africa realises that the UDHR is incompatible with its system of apartheid,  Saudi Arabia finds the articles on freedom of religion and marriage incompatible with Muslim Sharia law, and the other six (Communist) countries officially take the view that the UDHR is not strong enough in its condemnation of fascism (although the alternate view is that they oppose the right of citizens to leave their countries).

Is the Universal Declaration of Human Rights legally binding?   

No.  Signing up to it does not bind your country inextricably to obeying every article, and does not prevent you from passing new laws that may conflict with it.  However it does open you up to Strong International Condemnation and Diplomatic Pressure if you flout it.

Now we come to the European Convention on Human Rights.  Broadly similar to the UDHR, this entered into force in 1953, soon after the formation of the Council of Europe.  Unlike the UDHR however, the Convention came with some teeth – a judicial framework based around an actual Court – the European Court of Human Rights, based in Strasbourg.

It is important at this stage to point out that both the UDHR and ECHR are designed not to protect humans from other humans, but to protect humans from their own Government or State.  For example, the European Convention on Human Rights says that your Government or a representative of your Government (i.e. The Police) can't torture you.  It won’t stop you from being tortured by your local Serial Killer.  That's what your Country’s Laws are for.

So what is the European Court of Human Rights for?   

It is for the hearing of applications from citizens who feel that their State has breached one or more articles of the European Convention on Human Rights. 

Is the Court’s decision binding?  That depends.  If a European Country is a member of the Convention, then it has basically agreed to abide by the ruling of the Court.  But the Court’s ruling may be an Order, or it may be Advisory.  If the Court Orders a State to abide by its ruling, then that State must comply…unless that would be incompatible with its own Laws.  In such a case, the Country’s own Law takes precedence.

If the Court makes an Advisory decision, then the State is only required to take it into consideration.  The State can reject the decision of the Court.

Now we get to the Human Rights Act (1998).  This is a UK Act of Parliament, designed to incorporate into UK Law many of the rights contained in the European Convention of Human Rights.  Note that - it's a British Law, brought into existance by British MPs and a British Government.  In fact is is designed specifically to allow UK Courts to hear any applications against possible breaches agains the European Convention on Human Rights instead of the European Court in Strasbourg...providing those breaches are also covered by the Human Rights Act.
The European Court of Human Rights is for hearing breaches in the European Convention on Human Rights.  It has nothing to do with the Human Rights Act.  If the Human Rights Act did not exist, the European Convention on Human Rights still would, and all complaints against the UK Government that were covered by the Convention would have to be heard by the European Court.  Far from removing control to Strasbourg, the UK Human Rights Act actually returns control in most cases to the UK Judicial System.

The only way to remove the UK’s responsibilities towards the European Convention on Human Rights (and therefore “control” by Strasbourg) would be for the UK to leave the European Convention on Human Rights.  This would mean that the UK Government could treat any European citizen in any way it liked, providing it did not break its own Laws.  It would also mean that it could treat its own British citizens any way it liked, and as we have already seen from the Universal Declaration of Human Rights,  if the UK was are prepared to accept International Condemnation, it can already treat any non-EU citizen any way it likes.

Does this make it believable that the UK Government really wants to repeal the Human Rights Act, when it will actually mean that not only will Human Rights cases continue to be heard, but they will all be heard in Strasbourg?