Let's not allow the battle of a Biro and an octopus to ruin an inspiring Act

ON SUNDAY MORNING early, switching smartly — heathen that I am — from Radio 4 to Radio 5 Live to avoid the ever-mournful Act of Worship, I came across a battle concerning the Human Rights Act, between Lord Lester of Herne Hill, a Lib Dem lawyer, and George Pascoe-Watson, political editor of The Sun. The two men were contesting in a state of absolute mutual incomprehension. It was like watching a fight between an octopus and a Biro; neither knew what to do with the other at all.

The Sunman was in full populist mode. Foreign criminals, hijackers and terrorists were joining domestic reoffenders in wandering around unmolested, threatening the well-being of Brits, and it was almost entirely — Charles Clarke having departed — the fault of the HRA.

Their gavels muffled by the namby-pamby provisions of this Euro-inspired bit of legislation, beefy British judges were being forced into almost Andrexian softness. The HRA ought to be scrapped, the convention it was based upon ought to be repudiated and if that meant Britain taking itself off from out of the EU, then so be it. Or something along those lines.

Lord Lester’s response began with the idea that Pascoe-Watson was animated by Rupert Murdoch wanting to avoid the privacy implications of the HRA, and thus save his newspapers (including, presumably, this one) from being sued for invasion of privacy by irate celebrities. His Lordship was not pressed to explain why just about every other popular paper and populist commentator in the land was taking the same view.

I think it was Lord Lester’s opinion that there was no case to answer because (or so he seemed to be suggesting) there was no real problem. Others taking a similar line, however, have emphasised that insofar as the current moral panic about killers on the loose is in any way justified, it is all down to “maladministration” — ie, it’s the Government’s fault. If it was just more managerially competent then we’d all be happy, and the right people would be in jail and the wrong ones wouldn’t. In any case the Government really shouldn’t be criticising judges, because when governments criticise judges, freedom is threatened. Though not, of course, the other way around.

One surefire way of knowing how an argument is going these days, is to see which side has David Cameron on it. The man is like an old-fashioned winger — he can run like hell in one direction and then suddenly stop, and run in the other. Ditching liberalism for the moment, he is now to be found in deepest consideration of the possibility of repealing the HRA.

And the Government? Doing what I have always liked least about it, imagining itself to be in deepest communion with voters, when in fact succumbing to a bout of media populism. I loathe Tony Blair’s Henry II moments, which are so fundamentally different from the principled way in which he has dealt with, say, foreign policy. Ever since Jack Straw, then Home Secretary, joined the outcry against Mary Bell receiving a perfectly justifiable amount of money from Gitta Sereny’s book about her, I have cringed when these occasions have arisen.

This spasm — based originally on the Afghan hijackers case — forced the Lord Chancellor into the absurd position of identifying some real problems in the release of the rapist Anthony Rice, while pretending that this was also what the PM had been talking about. “This is not,” said Lord Falconer of Thoroton, “about an attack on the judges, this is about making clear in particular areas — like the release of prisoners who might be a danger to society — that public safety comes first.”

This is a perfectly respectable position for a minister to take, providing he tells us what comes second, and what the consequences of it coming second are. What comes second, we must imagine, is the release of prisoners who may not be such a danger to society, but who you just can’t be sure about. Just as the easier deportation of offenders to countries where they might be harmed may well put British public safety first, but increases the chances of some fraudster being slaughtered back at home.

What enrages me, however, about this debate is that almost no one wants to face the consequences of their own preferences. Take this, from a Guardian editorial yesterday. “The public,” it opined, after laying into the Government, “is not divided into a majority who care about security and a minority who care about liberty. Everybody cares about both security and liberty at the same time.”

This is surely just a piety, designed to avoid any notion of hard choices. Plenty of people care more about one than the other. Plenty of people believe that one is threatened more than the other. The idea that there is a universally accepted equilibrium level of security and liberty, any disturbance to which is caused by “maladministration”, is simple wishfulness. You want it to be so — it is so. In fact this is a deeply contested area, and for good reason.

Take deportation again. Lord Lester, unlike some of the Government’s libertarian critics, accepts the idea that suspected terrorists should be returned to countries with a history of torture, provided there are adequate monitoring procedures. He knows that it is perfectly fair for people to ask why French judges, for example, can send unwanted extremists back to Algeria, whereas it would seem most unlikely that British judges would. Can those who want a tightening up tell us, for example, just how trivial does a past offence have to be for us to not want the foreign offender deported to possible torture or murder?

The biggest objection to the HRA is that it helps to create a situation in which judges effectively make law, not elected politicians, who are closer to the people. In the US, where judges are also elected, this problem does not exist so much. A second argument against the Act, heard this week, is that it seeks to make concrete an entirely abstract set of principles and that this inevitably leads to confusion and bad decisions.

I don’t accept either argument. I believe that the Human Rights Act is a sensible and inspiring piece of legislation, which allows judges considerable leeway in the interpretation of human rights and therefore justifies continued public debate about those interpretations. Judges must be open-minded enough to welcome such discussion. They are not infallible or beyond criticism. In turn, we should be more adult about the choices.

As to the abstract nature of human rights, well you sure as hell know when they’re not there — when there isn’t freedom of expression or freedom of worship, when there is no right to a fair trial, or right not to be subjected to arbitrary detention, where there is torture or gross abuse.

I was perhaps a latish convert to the struggle for democracy and freedom. But I can see that at the moment that struggle is compromised by the mistakes of some of its strongest champions — by the error of Guantanamo, the crime of Abu Ghraib and the insidious acceptance by some in the US of torture. I can imagine few greater symbolic mistakes, few greater admissions of weakness, than the repealing of the Human Rights Act.

Comments

[John Angliss]

Good to see some support for the HRA, but where does the 'Euro-inspired' come from? It's pan-European, but it's not EU.

[BruceD]

An octopus and a Biro aren't so far apart as all that...

After all, an octopus' main mode of defense is a spray of ink, while a Biro's main mode of attack is a spary of ink...

[John Middleton]

Good post, nice to see some sensible debate around the issue. I also like the comparison of Blair's Henry II momenets!

[Hughes Views]

Another of life's minor irritations is that both sides of this debate are wont to resort to the daft 'thin edge of the wedge' argument.

There is not a jot of evidence to support it – nor its close cousin 'the slippery slope' metaphor - yet both are regularly trotted out.

I blame Margaret Thatcher (nothing to do with the preceding paragraphs - just a point of view).

[Martin Hoscik]

When you consider that John Reid - now Home Secretary - has previously suggested that changing international law to allow for the dententions in Guantanamo Bay I think we should all be very wary of any move by our increasingly desperate outgoing Prime Minister which impacts on our legal protections.

Some of us warned years ago that Blair is pretty extreme and a threat to our liberties. Sadly it's only after the illegal Belmarsh detentions, the failed attempts to starve asylum seekers out of the country and the criminalisation of previously lawful and non-violent protest that the naysayers have woken up.

[Jane Griffiths]

damn, someone got in ahead of me with the ink remark. I was told by a straight-faced local beat police officer at a public meeting in 2002 which I attended as local MP that the Human Rights Act meant that he could only arrest someone who was English or Welsh, so that other people (in this case traveller incursions were being discussed) could commit for example criminal damage with impunity. I cite this as an example of a general lack of understanding of the HRA, coupled with its deliberate misinterpretation leading to rank and unsavoury populism, as the Sun understands only too well.

[Nick (South Africa)]

>I was perhaps a latish convert to the struggle for democracy and freedom. by the error of Guantanamo,the crime of Abu Ghraib <
I think you mean 'crimes'....Abu Ghraib was run under the Baathists with I posit a distinctly harsher regime than any under the US…. The abuses by some US forces, which I’m guessing you had in mind (but it’s revealing you didn’t see fit to make the distinction between the prison under the Americans and under Saddam) there did reached the outside world when existing 'due process' by the US military relating to these abuses, came to light. Something that didn’t happen under the Bathist administrators; something that from where I sit, speaks well of the US over the Baathists.

A rhetorical point as I know you don’t pick up or respond to comments on your own blog (other than with Benji); possibly a wise move. Do you think the Brits should have put on trial German and Italian troops captured in WW2. Or is it legit to hold enemy troops for the duration? How should this work in the current global war against koranic literalist Jihadis?

[Bernard]

"A latish convert to the struggle for democracy ..."? It seems to me that the conversion surely has some way to go. "Media populism" is presumably just a sulky code for 'people who don't think like me' (or perhaps it's just the resentment of someone whose media style has a distinctly small pool of admirers - though some earlier commentators on this blog seem to identify enthusiastically with the octopus. Suckers up all perhaps).

Human Rights sure are missed when they are not there, but it is always a balancing act; how does the pain get shared out? But that is not a justification for worshipping an abstraction. Justice is what a community thinks it is, in accordance with their own moral code, circumstances and needs. The application of a 'universal' concept of human rights is just an arbitrary conceit that leads to injustice and resentment by those on whom it is imposed. I think in another context you would have no difficulty in condemning such behaviour as 'colonialism'.

The imposition can only take place when those in power are contemptuous of democracy, when the 'little people' are assumed to be fools or led astray by media moguls (though never, oddly, by pontificating columnists who have awarded themselves labels as 'progressives').

The debate ought properly to be about returning power to communities rather than distancing it ever further from them. The higher the court, the more universal the principles, the more abstract the points of law, the greater the injustice of the outcomes.

[Alan Knell]

A good law serves justice, protects the citizen, and creates good precedents. The HRA does none of these things.
It has proved to be a lawyer's ramp, a shield for violent criminals, a weapon which terrorists use against us. It rewards hijackers.
I am middle-aged, male, prosperous, English. I have never faced a criminal charge, and I hope I never shall. The HRA gives me nothing. It increases my tax bill by the costs of litigation and of the judgements made according to its rules. It reduces my security. It enrages me by the absurdities and injustices it creates.
The problem is its lack of balance. Any detailed, scrupulous assertion of human rights must be balanced by an equally detailed and scrupulous assertion of human responsibilities and obligations. Until this imbalance is corrected judges will continue to rule according to bad law, contradicting natural justice, and to the detriment of civil society.

[Frank Schnittger]

It's the EU, stupid. Anything that's wrong in the UK has to be the EU's fault. Now what was it we were talking about?

Ah yes, the HRA. Well obviously for an English Copper to arrest a traveller would be racist. He would be interfering with the cultural and ethnic identity of travellers to arrest them under the vagrancy acts.

At least John Reid suggesting that we change international law to facilitate Guantanamo Bay acknowledges that it is currently illegal.

Blair an extremist? He only sacked Jack Straw for suggesting that dropping Nuclear Bombs on Iran would be "nuts". Now there's a slippery slope to the thin edge of a wedge if I ever saw one.

It's Jack Straw that broke the chameleon’s back.

[bugiewugie]

If we start allowing the deportation of nb/ SUSPECTED terrorists to torture-practising countries then we may as well just say that we don't have a problem with torture, and so we may as well just legalise it here too(assuming it's currently illegal), which would be plain wrong, no matter if you're guilty or innocent.
The HRA's crucial, and without the upholding of these rights won't crime be more likely to rise, as a result of people so angered or frustrated with yet more loss of their personal liberties which allow them to function as expressive human beings?
The act of repealing the HRA, apart from that being regarded as inhuman in itself, potentially, would incur at least one further problem. This would be dressed up to sell us the idea that we'll need still further policing to cope with this resulting rise in crime, which we'll then have to pay for ourselves into the bargain. Slippery slope? More like Dante's Inferno.

Martin: Cameron wouldn't necessarily be any less anti-libery or extreme than Blair, he'll just do what he's told by whoever in a a similar way but with floppier haar.

I thought ink came from squid, eg. ten squids provide enough ink to colour a couple of kilos of pasta, something like that anyway. *May well be wrong, will put out tentacles

Just remembered it's penne (the pasta, not the Jean Marie variety)

[Freedom]

Welcome back Nick (South Africa). We missed you on the "BNP is set to reap the benefits of a very British insurrection" blog. You inspired quite a lot of correspondence by your assertion that your vote for the South African National party in 1994 was not a racist one.

Moving on, I think you are being a little unfair to David by taking him out of context. He refered to the crime of Abu Graib in the context of "... the struggle for democracy and freedom. But I can see that at the moment that struggle is compromised by the mistakes of some of its strongest champions"

Surely you are not suggesting that Saddam was a champion of "democracy and freedom"? What went on in Abu Graib was a crime at all times but it was no more than you would expect from a tyrant such as Saddam. It was only when the Americans engaged in such a crime that it compromised their struggle for "democracy and Freedom".

Your comment reminds me of the complaints made by South African white supporters of Apartheid against western criticisms of Apartheid. They quite rightly pointed out that most South African blacks were treated much better under Apartheid than many blacks were, say, by the Regime of Idi Amin in Uganda. A case of western double standards they argued.

Not really. Idi Amin was an unalloyed tyrant. Apartheid supporters claimed to uphold Christian, European, Western, democratic civilisation and standards. Europeans could not let that claim go unchallenged without conceding that racism was ok in Europe as well.

If Americans or South Africans (or anyone else) set themselves up as standard bearers for Democracy and Freedom it is only right that their actions should be judged by those standards. You cannot claim to be promoting freedom if you also engage in torture. If you are going to justify going to war by reference to Saddam's excesses, you have to be very careful not to even begin to indulge in such excesses yourself. Otherwise what was the point of the war?

[Nick (South Africa)]

>Welcome back Nick (South Africa). We missed you on the "BNP is set to reap the benefits of a very British insurrection" blog. You inspired quite a lot of correspondence by your assertion that your vote for the South African National party in 1994 was not a racist one.<

Sorry, missed the thread on the basis of so much being published about the BNP...and I was 'gat vol' (Afrikaans expression that translates directly as 'arse full'....doesn't work so well in English); shall go have a look see!

[Nick (South Africa)]

It was only when the Americans engaged in such a crime

My point is that the Yanks didn’t engage in anything comparable to Saddam, comparing what some reservist trailer trash did with the Saddam regime rather sticks in my gullet. Particularly given that the US excesses were bought to light in the media DIRECTLY as a result of publicity in turn resulting from the due process against the perpetrators.

And no, I’m not giving the Yanks a blank cheque, I have some issues over their strategy, tactics and training...but it was ever thus.....It's just that comparing them to the Bathists sticks in my craw so that I want to retch....It’s the moral compass of folks who would do this and their agenda that makes me curl my lip.

[Freedom]

Apartheid didn't kill millions of people either. Didn't stop it being wrong.

Some would argue that c. 100,000 Iraqi civilian deaths as a consequence of the war (not of course all directly at the hands of Americans) has to be balanced against the number of people saved from Saddam's torture chambers.

Although Saddam was guilty of massive attrocities during the Iran-Iraq war (fought with US support) and subsequent to the first Gulf war when he re-established his authority by suppressing Shia, Kurd, and Marsh Arabs with the utmost brutality, by the time of the second Gulf war his regime wasn't any more repressive that many dictatorships that enjoy American support to this day. His odious sons were the epitome of cruelty, but even their victims can be numbered in hundred rather than thousands.

It's ironic that Bush/Blair ended up using a human rights argument to justify the war - after the links to 9/11 and weapons of mass destruction justifications had been demolished. I very much doubt the real reason for the war had anything to do with the torture chambers and a desire to eradicate them. They were simply a useful propaganda tool. To a certain extent Bush/Blair were hoist on their own petard.

My recollection is also that the American abuses in Abu Graib came to light as a result of unauthorised leaks of unauthorised photographs. Due process didn't come into it until much later.

[Jack]

Well, I think American are helping them to be free and its now upto them to help themselves. There may have been many up and downs issues in the process of librating Iraq. But we freed them from evil ruler. Now, that's what matters the most.