Repeal of the Human Rights Act (HRA) 1998, which came into force in 2000 and its replacement by a “British Rights and Duties” Act was one of the Conservative Party’s (and UKIP’s) most distinctive manifesto commitments.  Repeal of this Act is much desired by the general population to judge from the recent General Election campaign.

The HRA set out explicitly to incorporate into British law the provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms.  This Convention is a product of the Council of Europe, a body co-founded with 9 other European nations by the United Kingdom in 1948.

The Convention was signed by 12 Contracting Parties in 1950 and was ratified by the UK in 1957.  Its aims were (1) to identify the civil and political rights reckoned to be basic to a democratic society, (2)  impose an obligation on each Contracting Party to secure these rights within their jurisdiction, (3) establish its own machinery for enforcing these rights – mainly through a new European Court of Human Rights, which has had and still has the power to receive individual and state applications and deliver judgments.

Needless to say, the considerable obligations imposed on the United Kingdom by the Convention were ratified (in 1957) as all UK treaty obligations still are, by the prerogative powers of the Crown decided by the Prime Minister of the day (Harold MacMillan) without any process of consultation with, let alone agreement by the British people, not even through their elected representatives in Parliament.

While there are 11 articles defining basic civil and political rights to be upheld and enforced in the Contracting States, it is article 3 which lists the “right to freedom from torture and inhuman and degrading treatment” of its citizens which is the focus of the most contentious decisions of the courts in Britain.

Nobody reading about the Convention or the context in which it and its parent, the Council of Europe, were conceived, can be in the slightest doubt that, amid the chaos of physical destruction at the end of the war in Europe in 1945, with millions of people displaced from their homes, and with governments barely established in some of the countries signing the Convention, that it was meant and is drawn up to apply to the actions of those governments and their agencies with respect to their citizens.  Neither the USA, nor Canada were signatories because, unlike NATO formed at about the same time, the territorial limits of enforcement of the Convention were and are Europe.

Nonetheless the Courts in this country have held and continue to hold, as in the latest case provoking outrage among the public (Abir Naseer, a Pakistani citizen) that the government cannot deport from these shores foreign citizens who might, in the Judges’ entirely subjective view, be subject to unspecified ill-treatment by their governments.  This despite the fact that the judge concerned (Justice Mitting) described (Times, 19 May) Abir Naseer, who entered this country on a student visa, as “an Al-Quaeda operative who posed and still poses a serious threat to the national security of the United Kingdom” (i.e. to the British people).

Leaving aside this latest example of the Courts’ belief that someone’s supposed Human Rights over-ride everything else – even consideration of the rights of British people in their own country, it may be asked where the Courts got the idea that the European Convention of Human Rights and its British derivative the HRA imposes an obligation on Britain to secure the human rights of foreign nationals in foreign jurisdictions.

This idea seems grounded in case law of the European Court of Human Rights (ECHR), which like every European institution will seize any opportunity to extend its domain of applicability.

A particular case, possibly the first case of extra-territorial extension, is Soering v. United Kingdom (1989) – case 11 EHRR 439.  The ECHR held that a decision of a member state to extradite someone (in this case a German citizen) to a state (in this case the USA) where he might be sentenced to death on a charge of murder, if proved of course, would be a breach of Article 3.  This case was followed by another, Chahal v. UK (1997 23 EHRR 43) where the ECHR held that there was a risk that Chahal would face torture at the hands of the Indian authorities, despite their assurances to the contrary, so that extradition to India would be a breach of Article 3.

Thus not only in the opinion of this writer did the ECHR judges act ultra vires, they caused maximum offence to arguably the United Kingdom’s most important friends in the world (besides our sister countries Canada, Australia and New Zealand).  Moreover because of the tradition in Britain of incorporating precedent decisions into the Common Law, the ECHR decision has allowed the judges in Britain henceforth to oblige the United Kingdom government to treat non-European nationals and states as if these were signatories of the European Convention on Human Rights, when they patently cannot be.  Since Britain has no means of imposing its laws and procedures on the USA, India, or Pakistan, Justice Mitting and other judges in similar “article 3” cases have imposed on the British people, without their agreement, the near impossible task of somehow controlling the actions of foreigners in our country (control orders having already been “outlawed” by the judges) foreigners moreover who have vowed to attack us.

If the present coalition government under LibDem pressure ditches the Conservatives’ manifesto commitment to repeal the HRA, this will bring great joy to the human rights industry, who would otherwise lose very valuable sources of continuing income in representing foreigners who have no actual right to be in the country.  (It is a mystery to most people how foreign students and others find the resources to pay for their appeals.)

This whole issue is political, not legal, and concerns the British people directly.  It is all the more regrettable therefore that certain people occupying supposedly politically impartial positions such as the Director of Public Prosecutions, Keir Starmer and Trevor Phillips, Chairman of the Equality Commission, have spoken against repeal of the HRA on vague and irrelevant grounds which do not begin to engage with the feelings and wishes of the vast majority of the British people.

Actually good laws and their enforcement are a necessary but not sufficient means of providing for the welfare of individual citizens and the nation as a whole.  While a system of Law is one of several essential ingredients in our national governance  – it is not above it, which is why Parliament passes new laws, and repeals others.  This it urgently needs to do in the Human Rights field.  In particular, as in Canada, we need to exclude the regular Courts from having any say over who is required to leave our country.  We should not depend on judge-made law, based on their interpretation of treaties imposing duties on the British people which have not been explicitly agreed to by Parliament representing the British people.

More generally, the present system by which the United Kingdom, unlike the United States for instance, can be signed up to treaties and declarations of war without the prior agreement of Parliament, needs to be changed.

Frederick May

 Email this article