OK. I’m going to get into trouble for admitting it. But just once in a while, Prime Minister David Cameron gets it right. And he’s right to try to repeal the Human Rights Act. And let’s be clear. That’s not because we want fewer human rights, or less protection for citizens. It’s because our rights are, in a very real sense, our birthright. We are born with them. Under our British system, it is the duty of the state to protect those rights — not to hand them down to us as something we should be grateful for. And it’s because we want that protection delivered by democratically accountable bodies, and by British Courts, not by foreign (and arguably synthetic) courts, where judges may be more concerned about political posturing than delivering justice and protecting rights.
So UKIP will not be opposing Cameron’s plan (this time). The opposition comes from the Moaning Minnies and Wet Willies and nay-sayers in his own party (and perhaps Labour and Lib-Dems as well).
A headline in today’s Sunday Telegraph (May 24th) reads “Senior Tory’s threat to quit over Human Rights Act”. The report is presented in stolidly gender-neutral terms, which suggest to me that it may involve a Moaning Minnie rather than a Wet Willie. But this un-named “member of the government” says “The idea that my constituents should have fewer protections available as a last resort is not something I can accept”.
How can anyone who gets as far as becoming “a member of the government” have such a splendidly naïve concept of human rights? Or regard British justice as an inadequate protection?
Yet he/she is not alone. Dominic Grieve says that leaving the ECHR “would be disastrous”. Perhaps he also thinks that freedom and democracy would be disastrous? Perhaps the British people are incapable of governing themselves, and operating their own legal system? He may think that — I don’t. Damian Green says “Withdrawing would appear as though the UK was no longer committed to human rights”. No Damian, it wouldn’t. And even if it did, we should not let the misunderstandings of others prevent us from doing what is right in principle.
I prefer Bernard Jenkin’s comment: “The application of human rights in the UK should not be decided by a foreign court”. Amen to that, Bernard.
There are two fundamental problems of principle with the ECHR. First, any attempt to codify rights in some kind of convention leads to judicial activism and mission creep. And second, the ECHR is justiciable in a foreign court with foreign judges, largely furnished from countries with markedly different legal systems with little idea of English Common Law, or the rights which centuries and generations of British people have enjoyed.
So: judicial activism. There is nothing intrinsically wrong with the ECHR. You could go through, phrase by phrase and clause by clause, and ask “So what’s wrong with that?”. And generally speaking, the answer is “Not much”. The problem is over-interpretation. The Telegraph gives a good account of cases where the term “right to a family life” has been stretched beyond reason (just as the qualifications for asylum have also been stretched to breaking point), and over-interpreted out of sight. Fathers allowed to remain because of children they’ve never seen and never supported. One case where the miscreant’s relationship with his cat was taken as evidence of family ties (“Oh no it wasn’t!” — I hear the howls of protest from the politically correct. But I’m afraid it was.).
The result is that terrorist suspects and foreign criminals are free to remain in our country (often at enormous expense in legal costs, housing and welfare payments), and able to re-offend. How does our un-named “member of the government” think that this ensures the human rights of her constituents? It does precisely the opposite. It puts them at risk, both physically and economically.
And the idea of these matters being determined in foreign courts by foreign judges is deeply offensive. As Enoch Powell said “I hold that man to be a traitor who appeals to foreign courts over the heads of Her Majesty’s justices”. He had a point.
Of course where Cameron gets it wrong is in his plan to replace the ECHR with a British Bill of Rights. If he does, we shall get straight back onto the treadmill of judicial activism and over-interpretation. I believe it was Margaret Thatcher who, when asked about the ECHR and so on, replied, “In this country we have our Common Law and a free press, and that is enough”. I think she was right.