Lord Hoffman is no fool. He is the second most senior law lord in
Little Britain, and by all accounts has a razor sharp intellect.But that's not all we have in common.He is obviously an avid reader of my blog,
and in a recent speech, has adopted my swingeing criticisms of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.He puts it more tactfully than I, but in
substance he questions the need for a European dimension in English domestic
law, and regards the Human Rights Act 1998 as at best unnecessary and at worst
downright interfering.
A brief review of the reasons
behind the Convention may be apposite.It came into being in 1950, in the immediate aftermath of the Second
World War.All the signatories at the
time were Johnnie Foreigners, and all had suffered, in one way or another, as a
direct result of the conflict.They had
either been occupied by the Master Race, or, like France,
had come to an ‘accommodation', or, like Italy, had started the war on the wrong
side.Whilst Little Britain had endured
its fair share of hardship, we held out against Jerry until the Americans came
to our rescue.
In 1950 Europe
was still emerging from the turmoil and human rights were as rare as hen's
teeth.France,
which, according to the French, had liberated Europe from the Nazi menace
single handed, turned their eyes northward to a nascent Germany, which, again thanks to the Americans
and Marshall
aid, was rebuilding itself at a commendable pace, and rapidly returning to centre
stage of the European powerhouse, but without the goose stepping and all that went
with it.More recently, Europe has been swollen by the accession of several
former Soviet republics, where human rights had been honoured more in the
breach than the observance.
Contrast all this with Little
Britain, where we had enjoyed a sort of human rights from as long ago as 1215,
where parliamentary democracy had been a way of life for centuries, and where
the common law, supplemented by statute, was the envy of the world.That's not to say it was all sweetness and
light, mistakes were made, but we lived, and still live, under an enlightened
rule of law.Johnnie Foreigner had very
little to teach us in this regard, and to this very day, I remain astonished
that the basic rights and freedoms of a civilised society need to be committed
to paper at all.Freedom of expression,
the right to a fair trial, a ban on inhuman and degrading treatment, to mention
but three, should surely be taken as read.
So in 1998, when Tony Blair's New
Labour government enacted the Human Rights Act, it was nothing more than an
overt display of their European credentials after a period of indifference
under the blessed Saint Margaret of Finchley and her limp wristed successor the
totally useless John Minor.If ever
there was a case of somebody promoted above his station, this was it.
But this display of European
credentials came with a price.We
adopted the Convention, warts and all, and virtually overnight, English
domestic law found itself subservient to Strasbourg
and the European Court of Justice.
Leaving aside the fact that on
present estimates, there are over 100,000 cases pending for determination, with
an average determination time of four years and counting, there are two major
flaws in the interpretation of Convention rights.The first is the ‘right' itself, enshrined in
eleven fundamental Articles of varying hues and colours, and approaching any
given right from Romania
involves a different journey when approached from Holland, and so on and so forth.To coin a phrase, the breach of a right is in
the eye of the beholder, and one sees it differently from another. In short,
one size fits all doesn't work.Secondly, the question of ‘proportionality' has never been
satisfactorily resolved.What may appear
a good reason to ‘avoid' an Article right in one country is not necessarily a
good reason to avoid it in another.
There are times when Convention
rights are taken to the extreme. Two
egregious examples will suffice. Inmates
of one Scottish prison are being paid compensation for slopping out, as this is
in breach of their human rights. In the second case, a man, originally from east
of Suez,
recently complained that his human rights were being breached when he was
prevented from cremating his grandmother on a bonfire in his back garden.And covert interception of telephonic
transmissions, an essential tool in the fight against crime, is routinely
challenged as a breach of the right to a private life.
And so it goes on.Everybody in the legal profession has his
favourite.So back to Lord Hoffman.What do Convention rights give to Little
Britain that we didn't enjoy before 1998?Answers on a postcard please.
I hope that the next Conservative
government will see the folly of this uneasy and unworkable partnership between
English domestic law and European Convention rights. They should repeal the
Human Rights Act, and let sanity and common sense prevail.
David Osborne is a successful barrister, voice actor, author, media personality and public performer. In 1991 he hit the headlines nationwide and made legal history when he delivered his final speech to the jury entirely in verse. For this tour de force he was dubbed the Barrister Bard. For more information please visit www.david-osborne.com
- Article Word Count: 755
- |
- Total Views: 68
- |
- permalink