ECHR - Key Rights & Restrictions

What are the key rights in the European Convention on Human Rights? - and when can these be restricted? The answers can be found in the Convention itself

But it can be easy to lose sight of the key points - so I have prepared a hand-out for my Open University W201 students, which reformats the text to highlight what the rights cover - and when States can interfere with them. This is a revision document - so if it is of help to you - or you have friends studying Constitutional; or  Administrative Law (UK) or Human Rights Law - please feel free to use it, or share this post (Facebook; Twitter; Email - or whatever)

Article 8 – Right to respect for private and family life 

1.    Everyone has the right to respect for his private and family life, his home and his correspondence.

2.    There shall be no interference by a public authority with the exercise of this right except 

1. such as is in accordance with the law and 
2. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion 

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one's religion or beliefs shall be subject only 

1. to such limitations as are prescribed by law and 
2. are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression 

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 

1. such formalities, conditions, restrictions or penalties as are prescribed by law and 
2. are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than 

1. such as are prescribed by law and 
2. are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

·        Do not forget the principle of proportionality – R (on the application of Daly) v Home Secretary [2001] 2 AC 532

o   Is the legislative objective sufficiently important to justify limiting a fundamental right?

o   Are the measures taken rationally connected to this objective?

o   Are the measures taken no more than is necessary to accomplish this objective?

Human Rights

Back in the early 1980s I was a law student in Sheffield. One of my "legal heroes" then was a solicitor for the National Council for Civil Liberties, who had won an important case - Harman v United Kingdom. She went on to become a key player in the Labour Party - and was its acting Leader in 2015.

I appreciate that we are in the middle of a General Election - and you might not like her politics - but if you are preparing for an exam on Human Rights (such as the W201 Open University course), it's worth reading a speech she made back in June 2015 - during the 800th anniversary of Magna Carta. I should also note that she is a QC.

Yesterday we celebrated the anniversary of Magna Carta which laid the foundations for our democracy, human rights and the rule of law in this country and throughout the world. Today we are determined to defend our Human Rights Act.

Labour values are about social and economic rights. And they are also about the civil and political rights embodied in the Human Rights Act. British values – evolved over centuries.
But these are not just Labour values – they are British values and universal human values.
The horrors of the Second World War inevitably made people think afresh about the rights to which every human person is entitled by virtue of their humanity - and how those rights could be protected.

An international endeavour - including Britons - set out a Charter which aimed at nothing less than establishing the norms of international decency, which would apply everywhere and protect everyone.

The Universal Declaration of Human Rights – adopted in 1948 – and the European Convention on Human Rights agreed in 1950, and which we ratified in 1951, embodies those efforts.
Simple but powerful, enshrining:
• The right to life, liberty and security
• The right to a fair trial
• Protection from torture
• Freedom of thought, conscience, religion, speech and assembly
• The right to free elections
• The right not to be discriminated against

The Human Rights Act inherits and embodies those universal values, and people around the world are still fighting for the rights it contains and we enjoy today. It has done an immeasurable amount to raise standards across European countries who suffered so much in WW2 which was its aim. 

The impact of the Human Rights Act has been profound.
It gives individuals rights which they can enforce here, in our courts, without having to traipse to Europe and wait years. But its impact has been much more far-reaching than the giving to individuals litigable rights - important though that is. It has precipitated good cultural and organisational change. It has changed the way public authorities reach decisions – both in respect of policies and individuals. It requires them to think not just about their own organisational exigencies but also about the rights of the individuals and communities affected by what they do.

When difficult judgements have to be made The Human Rights Act sets the framework for what has to be taken into account. The competing rights which have to be weighed in the balance. Like balancing the right of an individual to privacy against the right of freedom of the press. 
Or when considering the qualification of those rights. Where there is a right but it is not absolute – such as the right to family life which is protected except where it is necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.  

Often there is no easy right or wrong decision. But The Human Rights Act makes the thought process right. That thought process is important for the individual but it is also a reassurance for institutions who make desperately difficult decisions because it allows them to demonstrate, that in making a decision, they did give proper weight and consideration to the relevant rights.

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising. Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:
“The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual - those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority. 
And we have to protect the individual from the state when it gets it wrong. I’ve experienced this myself when I was the individual whose rights were trampled by the state. 

In 1981 when I was legal officer at Liberty, acting for a prisoner in a case against the Home Office, the government prosecuted me for contempt for allowing a Guardian journalist, David Leigh, to come to my office to look at Home Office documents which had previously been secret but been read out in open court as part of our case. Despite the fact that they’d been read out and were therefore in the public domain, the Home Office were so keen to suppress what they showed that they used the power of government to throw everything at me.  I didn’t think I’d done anything wrong as the documents had been read out in court. But at that time Liberty was loathed by the establishment – not least for our strong stand against internment in Northern Ireland.  So my solicitor told me frankly that there was no chance I’d get off. He said, “who do you think the courts will prefer – you or the Home Office?” He was right. The High Court found me guilty of contempt. My appeal to the Court of Appeal was turned down by Lord Denning. And it was only when my case was heard in The European Court of Human Rights seven years later – that I won and was totally vindicated. 

The moral of my case is that if we’d had the Human Rights Act then I don’t think they would even have taken the case against me. And if they had, I’d have won in the British courts because the judges would have had to take my Convention Rights into account. 

But it’s also the case that if we’d not been part of the ECHR – which is what the government now seems to want – I’d never have been able to clear my name in Europe.

I know what it’s like to be an individual at the mercy of an overbearing state as a young lawyer, who’d done nothing wrong but with my whole career and reputation threatened. But I can understand why it’s easy to criticize the Human Rights Act and why people can feel uncomfortable about it. I know what it’s like from the other side too. 

I’ve been a Cabinet Minister and I know that The Human Rights Act is always going to be a nuisance to those in power because you want to get on and do things. 
But it’s right that as a government minister that you should have to look over your shoulder and that your power is constrained by other people’s rights. 

And it is challenging because we believe in the sovereignty of parliament - and human rights law tempers parliamentary thinking. But it should. Its right that the question is always asked - and the answer certified - “this proposal is compliant with our commitments to human rights.”
But remember that unlike other Bills of Rights in other parts of the world, the Human Rights Act does not allow judges to strike down Acts of Parliament. It creates a conversation between the judiciary and legislature, parliamentary sovereignty is preserved.

Sometimes we all know that defending the Human Rights Act can feel challenging because it can involve European judges protecting the rights of an unpopular individual from an elected authority, or protecting the rights of an unpopular minority from a popular majority. 
But it is the right thing to do. As Supreme Court Judge Brenda Hale said: 
“Democracy values everyone equally even if the majority does not”

We have to recognise that there is an inherent susceptibility for those who have power to extend it, to over-reach, and ultimately abuse it. And that is irrespective of how legitimate that power is and how they acquired that power and how strongly they believe they are doing the right thing. 
So we do need to have our executive and our legislature set within a framework of human rights. 
And, individuals do need to be able to court to directly enforce their convention rights.
And we do need to have an international framework for our own judiciary. Our judiciary is independent and uncorrupt. It is admired around the world. But it is not infallible and it does get pressurized by government. 

Having judicial oversight from a group of judges from outside our country is a check on them but also an important bulwark for our judiciary against the temptation of any government to tamper with them. Each individual jurisdiction benefits from the constant dialogue between the national and the international judiciary.

We here understand that there can never be any complacency - there has to be eternal vigilance in defending these rights. No country should ever feel so confident that it can regard itself to be in a “post-human-rights era.” Compliance with basic norms of human rights is not a state that you reach, and then you don’t need anymore. It requires constant vigilance for the rights of individuals, constant guarding of the rights of minorities, constant restraint on those who have power.

The government can’t “amend” some of the convention rights but still keep our place in the Convention. And leaving the convention would have serious and far reaching consequences.
As I’ve said, I think it’s important - for our own sake - that our human rights framework is set within an international system. But it’s also important for the human rights of those in other countries. 

Our commitment to human rights has to operate here at home. But our commitment is equally to human rights for people in the rest of the world. If we were to walk away from our international human rights treaty obligations, we would deprive ourselves of the ability to press other countries to accept high levels of human rights compliance. And we cannot say to others in Europe - particularly Eastern Europe - that they should stay within a European framework but we have somehow outgrown it, or don’t need it anymore.

One of the most important aspects of the international framework of human rights law is precisely so that governments can’t have their own definition of human rights. In seeking to do this, our government will be giving the green light to countries who abuse human rights to do the same. 
The European Convention on Human Rights is just one of a network of treaties we have entered into enshrining the same rights such as the UN convention against Torture and the UN Convention on the rights of the child. To leave the European Convention raises questions about our willingness to comply with those other commitments on human rights.
But standing up for human rights goes beyond our moral authority abroad. It’s about our character and identity as a country. Do we really want our country to no longer consider it necessary to adhere to and shape common norms of decency and justice abroad. I would say no.

We are here today not only because we care about human rights but because we feel they are under threat. The Government has signaled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queens Speech that they would be consulting on a “British Bill of Rights”. We think that even the consultation is the start of a slippery slope. 

You can’t be a bit in favour of human rights and a bit against it. You have to be clear and resolute about it.

The Prime Minister has already indicated that their plans will be delayed – so no bill in the Queen’s Speech but a promise of a consultation paper in the Autumn. No doubt this delay is not just because they have a slim majority and know there’s a lot of opposition to their plans. It’s also because their plans are incoherent. As I’ve said, they can’t opt out of some human rights but still be in the European Convention. 

They are also politically and constitutionally destabilising. The complete incorporation of the European Convention is written into the Good Friday Agreement and The Human Rights Act is written into the devolution settlement for Scotland. Amending the Human Rights Act would destabilise those settlements and have serious constitutional consequences undermining the Good Friday Agreement in Northern Ireland and the devolution settlement in Scotland. 

We will protect human rights. We are determined
• that human rights legislation should not be watered down,
• that its limits should not be narrowed,
• there should not be any circumstances where there should be a “opt out” from some of the human rights contained in the European Convention
• and that we should remain within the framework of the European Convention on Human Rights

There is a broad alliance of people and organisations in this country who will defend human rights. We will be part of that but we will work with those of other political parties because support for the Human Rights Act is not just the preserve of the Labour Party. There are those in the Tory party who believe in this just as strongly as we do and articulate it clearly – as did William Hague when he said

“The belief in political and economic freedom, in human rights and in the rule of law, are part of our national DNA.  Where human rights abuses are seen to go unchecked, our security and our prosperity suffer as well. And how we are seen to uphold our own values is a crucial component in our influence in the world.” 

He articulates how human rights are part of, not at variance with, our British values and matter for our place in the world.

There are MPs in all parties who support human rights. There are peers of all parties and who are in no party who will defend the Human Rights Act. 
In my role as interim leader of the Labour Party I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and I’d like to invite you to co-sign the letter.

Together we can send a strong signal that he mustn’t publish the consultation paper, he mustn’t publish a draft bill, he mustn’t entertain the idea of leaving the ECHR. 

What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act. No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.

But we believe that, together, we can prevent the government eroding human rights. Their policy is intellectually incoherent and, worse, it’s wrong in principle.

Though Labour is in opposition, not in government, we believe that in this case, on an issue of such profound importance, they can and should be held back.

Getting Revision Focused

A starting point in revision is to identify the key topics that need to be covered. 


For W200 Students (or students of English legal System and EU Law)

Below is a MindMap illustrating the key parts of the W200 Understanding Law course. Unit 8, on Scottish Law is not examinable - so I haven't incorporated it.

Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One and Two make up "Introduction to Law
1 Introduction and what is law
2 Terminology and sources of Law

Each unit is subdivided - Unit One -
A General Introduction to the course - no need to revise this
B What is Law?
C The Functions of Law

Note the key themes and further divisions - B1, B2, B3.....
You might want to draw your own MindMap for each Subject and/or Unit.
Briefly summarise the key points as you revise - this involves condensing the information.



(click on the mindmap for the full version)

For W201 Students (or students of UK Constitutional Law; Human Rights & Criminal Law)

Below is a MindMap illustrating the key parts of the W201 The Individual & the State course. 
Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One to Five cover "Constitutional Law"

1 Fundamental Values, constitutions and core constitutional principles
2 The sources of the UK Constitution
3&4 Parliamentary supremacy
5 The institutions of State in the UK

Each unit is subdivided - Unit One -
A Identifying fundamental values
B Constitutions: purpose and classification
C Core constitutional principles (1) Parliamentary supremacy (2) Responsible government
D Core constitutional principles (1) The Rule of Law (2) The Separation of Powers
Note the key themes and further divisions - B1, B2, B3.....




(click on the mindmap for the full version)

Revision

It's that time of year again. I have OU students on the W200 (Understanding Law) and W201 (Law: The Individual & the State). Washminster has, in the past, been a useful resource for those studying at University or for A-Levels in the subjects of Law and Politics. It is my intention to produce posts which may be of especial use to such students.

The subjects I will be focusing on include
# Principles of effective revision
# English Legal System
# UK Constitutional Law
# European Union Law
# Human Rights (with an emphasis on the European Convention on Human Rights)
# Principles of Obligations (Contract and Tort)
# Criminal Law

- but fear not, these subjects are not dry academic subjects. They will be at the forefront of debate across the world. In the UK, there will be a referendum on Britain remaining in the EU. Soon afterwards Michael Gove is expected to announce proposals for the replacement of the Human Rights Act (which gives effect to the ECHR in the UK - allowing its provisions to be raised and applied in English courts [Note - the OU courses concerned deal with English Law - although there is a unit on Scottish Law which is non-examinable]. The proper use of 'constitutions' lies at the heart of current debate in the USA - and concerns about respect for human rights is increasing across the world. So there will be in these posts, something for everyone. There's no need to switch just because you aren't facing an exam!

If you do have family; friends; neighbours or students who might value Washminster as an additional revision tool - please share this post (or our address - http://washminster.blogspot.co.uk/) with them.

Human Rights

Back in the early 1980s I was a law student in Sheffield. One of my "legal heroes" then was a solicitor for the National Council for Civil Liberties, who had won an important case - Harman v United Kingdom. Now she is the acting Leader of the Labour Party, in office until a new permanent leader is elected.

This week she made a very important speech about Human rights. I've spoken to people who were there when she delivered it - they were very impressed by what she said. I've read the transcript - and would invite you to do the same. In this week of the anniversary of the Magna Carta - it makes some very important points.

Yesterday we celebrated the anniversary of Magna Carta which laid the foundations for our democracy, human rights and the rule of law in this country and throughout the world. Today we are determined to defend our Human Rights Act.

Labour values are about social and economic rights. And they are also about the civil and political rights embodied in the Human Rights Act. British values – evolved over centuries.
But these are not just Labour values – they are British values and universal human values.
The horrors of the Second World War inevitably made people think afresh about the rights to which every human person is entitled by virtue of their humanity - and how those rights could be protected.

An international endeavour - including Britons - set out a Charter which aimed at nothing less than establishing the norms of international decency, which would apply everywhere and protect everyone.

The Universal Declaration of Human Rights – adopted in 1948 – and the European Convention on Human Rights agreed in 1950, and which we ratified in 1951, embodies those efforts.
Simple but powerful, enshrining:
• The right to life, liberty and security
• The right to a fair trial
• Protection from torture
• Freedom of thought, conscience, religion, speech and assembly
• The right to free elections
• The right not to be discriminated against

The Human Rights Act inherits and embodies those universal values, and people around the world are still fighting for the rights it contains and we enjoy today. It has done an immeasurable amount to raise standards across European countries who suffered so much in WW2 which was its aim.

The impact of the Human Rights Act has been profound.
It gives individuals rights which they can enforce here, in our courts, without having to traipse to Europe and wait years. But its impact has been much more far-reaching than the giving to individuals litigable rights - important though that is. It has precipitated good cultural and organisational change. It has changed the way public authorities reach decisions – both in respect of policies and individuals. It requires them to think not just about their own organisational exigencies but also about the rights of the individuals and communities affected by what they do.

When difficult judgements have to be made The Human Rights Act sets the framework for what has to be taken into account. The competing rights which have to be weighed in the balance. Like balancing the right of an individual to privacy against the right of freedom of the press.
Or when considering the qualification of those rights. Where there is a right but it is not absolute – such as the right to family life which is protected except where it is necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.  

Often there is no easy right or wrong decision. But The Human Rights Act makes the thought process right. That thought process is important for the individual but it is also a reassurance for institutions who make desperately difficult decisions because it allows them to demonstrate, that in making a decision, they did give proper weight and consideration to the relevant rights.

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising. Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:
“The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual - those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority.
And we have to protect the individual from the state when it gets it wrong. I’ve experienced this myself when I was the individual whose rights were trampled by the state.

In 1981 when I was legal officer at Liberty, acting for a prisoner in a case against the Home Office, the government prosecuted me for contempt for allowing a Guardian journalist, David Leigh, to come to my office to look at Home Office documents which had previously been secret but been read out in open court as part of our case. Despite the fact that they’d been read out and were therefore in the public domain, the Home Office were so keen to suppress what they showed that they used the power of government to throw everything at me.  I didn’t think I’d done anything wrong as the documents had been read out in court. But at that time Liberty was loathed by the establishment – not least for our strong stand against internment in Northern Ireland.  So my solicitor told me frankly that there was no chance I’d get off. He said, “who do you think the courts will prefer – you or the Home Office?” He was right. The High Court found me guilty of contempt. My appeal to the Court of Appeal was turned down by Lord Denning. And it was only when my case was heard in The European Court of Human Rights seven years later – that I won and was totally vindicated.

The moral of my case is that if we’d had the Human Rights Act then I don’t think they would even have taken the case against me. And if they had, I’d have won in the British courts because the judges would have had to take my Convention Rights into account.

But it’s also the case that if we’d not been part of the ECHR – which is what the government now seems to want – I’d never have been able to clear my name in Europe.
 
I know what it’s like to be an individual at the mercy of an overbearing state as a young lawyer, who’d done nothing wrong but with my whole career and reputation threatened. But I can understand why it’s easy to criticize the Human Rights Act and why people can feel uncomfortable about it. I know what it’s like from the other side too.

I’ve been a Cabinet Minister and I know that The Human Rights Act is always going to be a nuisance to those in power because you want to get on and do things.
But it’s right that as a government minister that you should have to look over your shoulder and that your power is constrained by other people’s rights.

And it is challenging because we believe in the sovereignty of parliament - and human rights law tempers parliamentary thinking. But it should. Its right that the question is always asked - and the answer certified - “this proposal is compliant with our commitments to human rights.”
But remember that unlike other Bills of Rights in other parts of the world, the Human Rights Act does not allow judges to strike down Acts of Parliament. It creates a conversation between the judiciary and legislature, parliamentary sovereignty is preserved.

Sometimes we all know that defending the Human Rights Act can feel challenging because it can involve European judges protecting the rights of an unpopular individual from an elected authority, or protecting the rights of an unpopular minority from a popular majority.
But it is the right thing to do. As Supreme Court Judge Brenda Hale said:
“Democracy values everyone equally even if the majority does not”
 
We have to recognise that there is an inherent susceptibility for those who have power to extend it, to over-reach, and ultimately abuse it. And that is irrespective of how legitimate that power is and how they acquired that power and how strongly they believe they are doing the right thing.
So we do need to have our executive and our legislature set within a framework of human rights.
And, individuals do need to be able to court to directly enforce their convention rights.
And we do need to have an international framework for our own judiciary. Our judiciary is independent and uncorrupt. It is admired around the world. But it is not infallible and it does get pressurized by government.

Having judicial oversight from a group of judges from outside our country is a check on them but also an important bulwark for our judiciary against the temptation of any government to tamper with them. Each individual jurisdiction benefits from the constant dialogue between the national and the international judiciary.

We here understand that there can never be any complacency - there has to be eternal vigilance in defending these rights. No country should ever feel so confident that it can regard itself to be in a “post-human-rights era.” Compliance with basic norms of human rights is not a state that you reach, and then you don’t need anymore. It requires constant vigilance for the rights of individuals, constant guarding of the rights of minorities, constant restraint on those who have power.

The government can’t “amend” some of the convention rights but still keep our place in the Convention. And leaving the convention would have serious and far reaching consequences.
As I’ve said, I think it’s important - for our own sake - that our human rights framework is set within an international system. But it’s also important for the human rights of those in other countries.

Our commitment to human rights has to operate here at home. But our commitment is equally to human rights for people in the rest of the world. If we were to walk away from our international human rights treaty obligations, we would deprive ourselves of the ability to press other countries to accept high levels of human rights compliance. And we cannot say to others in Europe - particularly Eastern Europe - that they should stay within a European framework but we have somehow outgrown it, or don’t need it anymore.

One of the most important aspects of the international framework of human rights law is precisely so that governments can’t have their own definition of human rights. In seeking to do this, our government will be giving the green light to countries who abuse human rights to do the same.
The European Convention on Human Rights is just one of a network of treaties we have entered into enshrining the same rights such as the UN convention against Torture and the UN Convention on the rights of the child. To leave the European Convention raises questions about our willingness to comply with those other commitments on human rights.
But standing up for human rights goes beyond our moral authority abroad. It’s about our character and identity as a country. Do we really want our country to no longer consider it necessary to adhere to and shape common norms of decency and justice abroad. I would say no.

We are here today not only because we care about human rights but because we feel they are under threat. The Government has signaled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queens Speech that they would be consulting on a “British Bill of Rights”. We think that even the consultation is the start of a slippery slope.

You can’t be a bit in favour of human rights and a bit against it. You have to be clear and resolute about it.

The Prime Minister has already indicated that their plans will be delayed – so no bill in the Queen’s Speech but a promise of a consultation paper in the Autumn. No doubt this delay is not just because they have a slim majority and know there’s a lot of opposition to their plans. It’s also because their plans are incoherent. As I’ve said, they can’t opt out of some human rights but still be in the European Convention.

They are also politically and constitutionally destabilising. The complete incorporation of the European Convention is written into the Good Friday Agreement and The Human Rights Act is written into the devolution settlement for Scotland. Amending the Human Rights Act would destabilise those settlements and have serious constitutional consequences undermining the Good Friday Agreement in Northern Ireland and the devolution settlement in Scotland.

We will protect human rights. We are determined
• that human rights legislation should not be watered down,
• that its limits should not be narrowed,
• there should not be any circumstances where there should be a “opt out” from some of the human rights contained in the European Convention
• and that we should remain within the framework of the European Convention on Human Rights

There is a broad alliance of people and organisations in this country who will defend human rights. We will be part of that but we will work with those of other political parties because support for the Human Rights Act is not just the preserve of the Labour Party. There are those in the Tory party who believe in this just as strongly as we do and articulate it clearly – as did William Hague when he said

“The belief in political and economic freedom, in human rights and in the rule of law, are part of our national DNA.  Where human rights abuses are seen to go unchecked, our security and our prosperity suffer as well. And how we are seen to uphold our own values is a crucial component in our influence in the world.”

He articulates how human rights are part of, not at variance with, our British values and matter for our place in the world.

There are MPs in all parties who support human rights. There are peers of all parties and who are in no party who will defend the Human Rights Act.
In my role as interim leader of the Labour Party I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and I’d like to invite you to co-sign the letter.

Together we can send a strong signal that he mustn’t publish the consultation paper, he mustn’t publish a draft bill, he mustn’t entertain the idea of leaving the ECHR.

What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act. No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.

But we believe that, together, we can prevent the government eroding human rights. Their policy is intellectually incoherent and, worse, it’s wrong in principle.

Though Labour is in opposition, not in government, we believe that in this case, on an issue of such profound importance, they can and should be held back.

Washminster is back!

Finally, Washminster returns. My apologies for the delayed return. The demands on my time in June were greater than expected.

This month contains two important national days - those of France and the United States. Both celebrate a common theme - Liberty. Government's which lacked the consent of the people were ultimately removed. In both cases this involved the use of force. The Americans resisted the forces of the British Crown and eventually won the right to select their own government. In France the King resisted the will of the people - and was removed. Now both countries have systems which allow for the peaceful transfer of power. The people are regarded as sovereign.

In Britain, we have no national day - but instead enjoy the fruits of centuries of struggle for our rights. Parliament, not the Monarch is sovereign. (Recommended reading for any students of constitutional law is the book below -)



There is universal suffrage, and our liberties are now protected by the Human Rights Act 1998. Attempts by the authorities to search property or detain individuals without lawful cause were resisted by the Courts. Freedom of speech was upheld. But new challenges arise! In coming weeks this blog will consider the milestones in the histories of our shared Liberties - and the current challenges.

Welcome back!

Rights

In the past slavery and serfdom have been facts of British life - some of our fellow human beings were regarded as less than fully human.

But in more enlightened times, it was recognised that whatever a person' gender; race; class; natural intelligence - there were certain rights that they should enjoy.

It is sometimes worth reflecting on what those rights are. Over recent centuries attempts have been made to identify and list those rights. It's worth looking at some of those documents, and reflecting on why those rights are so important.

Declaration of the Rights of Man and the Citizen (France, August 1789)

Declaration of the Rights of Man and the Citizen (France, 1793)

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" - US Declaration of Independence (1776) - and the amendments to the US Constitution

Article [I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article [III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article [IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [VI]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article [VII]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article [VIII]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article XIII

Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Article XIV

1:  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article XV

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Article [XIX]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment XXIV

1.  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Amendment XXVI

1 The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Universal Declaration of Human Rights (1948)

European Convention on Human Rights (1952)

Constitutional (& related) Issues

Yesterday the House of Lords had a full day's debate on "Home, Legal and Constitutional Affairs and Local Government" matters arising from the Queen's Speech. I sat in the gallery (and apart from two short breaks for a drink) sat through the seven and a half hours of the debate - it was worth watching - many of the key arguments which will be discussed in the session were rehearsed. You can read the speeches in Hansard, which is available here.

In the Queen's Speech there were 23 bills announced. Of particular interest in the fields of Constitutional and Administrative matters & Human Rights are bills on

• Parliamentary Reform
• Defence of Parliamentary Privilege [Draft]
• EU
• Public Bodies Reform
• Local Government
• Decentralisation & Localism
• Freedom
• Identity Documents
• Terrorist Asset Freezing Bill

To follow these bills (which may aquire slightly different titles) you can follow via the Parliamentary Website, which is accessible here.

R (Binyam Mohamed v Secretary of state for Foreign & Commonwealth Affairs

The Court of Appeal's further judgement in this case (see earlier post) has now been published. The issue is whether the redacted paragraphs from the main judgement should be made public. It can be accessed here.

It's a useful judgement to read

firstly, it is readable - some reports can be very long and the reasoning complex. This is logical and can be followed with ease.

secondly , the issues are of great importance.

Press Coverage is available -

The Independent

Guardian

The Times

Constitutional Meat

The case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs raises a host of important constitutional issues. There is much in the case meriting reflection upon. The two key issues are –

Firstly, how far should the demands of National Security be allowed to compromise fundamental constitutional principles – such as the Rule of Law; accountability to Parliament and individuals’ rights? This is a very important – perhaps the most important – constitutional issue. By chance I’ve been listening to the audiobook of “Packing the Court” and have reached the point where the conflict between President Lincoln and the Supreme Court over this issue is discussed. To complement that I glanced again through former Chief Justice Rehnquist’s book “All the Laws but One”. (I also came across a very useful article by Lord Bingham - Personal Freedom and the Dilemma of Democracies') I recommend all of these if you are reflecting on the issue.

The deleted paragraph in the draft judgement in the Binyam Mohammed case contains the following criticisms of MI5
• It failed to respect human rights
• It deliberately misled Parliament
• It had a ‘culture of suppression’

National Security – and its oversight by Parliament and Congress is an interesting topic itself. Many of the works of Christopher Andrew deal with the subject. By coincidence yesterday also saw the passing of former Representative Charlie Wilson – and both the film and book about him “Charlie Wilson’s War” are useful primers on Congress and National Security.

The second issue concerns the rule established in the famous “Ship Money” case of the Seventeenth Century involving John Hampden [a case that Washminster will be discussing shortly] that there should be no secret communication between lawyers and the Court in legal proceedings (unless the Court has given specific directions).

The Guardian reports today that the Government’s QC, Jonathan Sumption, sent his comments on the draft judgement to Lord Neuberger, copying in only one of the parties to the case (Binyam Mohamed) - and not the representatives of the Guardian, Washington Post, New York Times, Liberty, Justice, Index on Censorship, who were also parties. Lord Neuberger assumed (as is standard practice) that all parties had seen Sumption's comments and had not felt the need to sumbit comments on Sumption's - and took this into account when he amended the draft.

Hansard contains the statement (and supplementary questions) made in the House of Commons on the case by Foreign Secretary David Miliband.

Your comments on these matters would be appreciated. You can make a comment directly - or send to me here.

Control Orders

Lord Lloyd of Berwick (A former Law Lord himself [1984-93] and Chair of an Inquiry into Legislation on Terrorism [1995]) is due to ask in the House of Lords this afternoon "what plans [Her Majesty's Government] have for phasing out control orders in the light of the unanimous decision of nine Lords of Appeal in Ordinary in Secretary of State for the Home Department v AF (No 3)."

This is the latest in a series of cases where the highest court in the UK (then the House of Lords Judicial Committee - which has subsequently become the UK Supreme Court) has ruled against Government attempts to restrict the activities of suspected but not convicted terrorists. The Court held that an individual in government control “must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. . . . Where, however, the open material consists purely of general assertions and the case against the controlee [individual held pursuant to a control order] is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

The full judgement can be read here

Human Rights and the Armed Forces

Lord Astor of Hever will ask today "Her Majesty’s Government what is their reaction to the judgment of the Court of Appeal on 18 May regarding the applicability of the Human Rights Act 1998 to members of the armed forces operating in combat zones."

In the case of R (Smith) v Secretary of State for Defence the Court of Appeal held that sending out soldiers without adequate protection could be an actionable breach of their human rights. A newspaper report can be found at: http://www.guardian.co.uk/uk/2009/may/18/british-soldiers-human-rights-battle

The full judgment can be read at http://www.judiciary.gov.uk/docs/judgments_guidance/sec-state-defence-queen-smith-others.pdf

SoS for the Home Department v AF

The judgment can now be read in full at http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af.pdf

Eroding Liberties

On both sides of the Atlantic there are concerns that ancient liberties are under attack. The response to 9/11 and the threat of terrorism is one reason - but the increased sophistication of surveillance techniques and computer databases also give rise to concerns.

A number of organisations in the UK are promoting a "Convention on Modern Liberty" this Saturday - http://www.modernliberty.net/

You may find the following document disturbing

http://www.modernliberty.net/downloads/abolition_of_freedom.pdf

It's certainly worth thinking about!