Thank you to David, Julia and Katie, the BPP Liberty Student Directors, for organising tonight’s packed event at BPP Law School (@BPPLawSchool) Holborn. Some of the leading barristers and solicitors including Silks, involved in human rights practice, have trained at BPP at some stage. It was an honour and privilege to welcome Shami Chakrabarti to BPP this evening. To read more about the BPP Human Rights Unit, please go to this page on the actual website of BPP.
Shami began by acknowledging that BPP has a long history of supporting Liberty. This year, Shami is particularly keen for student members to come on Saturday May 26th2012, for the Liberty Members Conference. Shami said that she was keen for this Conference to reflect a wide age demographically.
The Liberty Members Conference brings together people passionate about human rights. It will be full of lively debate and a fantastic opportunity to impact human rights issues and policies. Attendees will hear from a line up of speakers, including Attorney General Rt Hon Dominic Grieve QC MP, Rt Hon Simon Hughes MP, Shadow Attorney General Emily Thornberry MP, and Guardian columnist Marina Hyde. The day will be rounded up with a key note speech from Liberty Director Shami Chakrabarti.
The subject of Shami’s talk this evening was a general threat to human rights in contemporary U.K.
Shami started by establishing a number of contradictions. Firstly, people tend to support human rights abroad, but tend not to respect them much here. Secondly, people tended to be seeking international collaboration in fighting crime, but likewise ignoring human rights in an international level. Thirdly, people were attempting to seek sovereignty by scrapping the Human Rights Act, through “a bizarre Euroskeptic affair”. Fourth, people appeared tp be ‘preaching’ law and order, but ignoring the Rule of Law – Shami felt that this was a fundamental contradiction. Finally, Shami felt that the grand ‘contradiction’ was to promote a new Bill of Rights, not to entrench human rights, but actually to dilute them.
Shami reported the fundamental universal framework has been under threat for some time, not just from tyrants, but also from so-called ‘western democrats’. According to Shami, Liberty, the National Council for Civil Liberties’ in all of 78 years, has never taken this argument for granted. Founded in 1934, it is a cross party, non-party membership organisation at the heart of the movement for fundamental rights and freedoms in the UK. It promotes the values of individual human dignity, equal treatment and fairness as the foundations of a democratic society.
The rest of the article explains Shami’s argument to the best knowledge of the author.
The first foundation is that there exists a reason why we have “human rights”, because of the inherent precious nature of the human right. The ideal of human dignity necessitates a modicum of dignity, especially for people who have lost their self-respect. Shami is constantly struck by the relative ease with which the underlying philosophical basis for embracing human rights has been embraced, despite individual differences within society. Shami believes there is something precious about human life. The second foundation is the notion that democracy is ‘the least worst way to run society’, therefore there needs to be a bundle of freedoms underpinned by a Rule of Law. The most common understanding of democracy in theory involves periodic elections, but Shami urges us to consider the impossibility of democracy without a Rule of Law, and fundamental rights. This has happened in Shami’s lifetime, according to Shami, and has indeed happened all over the world. While it is a common refrain to consider democracy and human rights, Shami argues that democracy cannot exist without human rights.
Shami wants to consider the “havers and eaters” of the Human Rights legislation, those who apparently challenge Human Rights without responsibility. She emphasises that there is in fact a culture of deception, picking which rights are which appropriate for protection at any time – but populism is destructive to law, and to the debate in general. Notwithstanding the interdependence between the Rule of Law and politics, there has been a continual debate about parliamentary sovereignty over time. Shami argues that this is a ‘fairy tale’, which has ignored the power of Executive ‘which wears the cloak of parliamentary sovereignty’. First, there has been an idea that judges are somehow “illegitimate”, and act as a “a road block to sovereignty”. Rights, freedoms and the rule of law are fundamental to democracy. This idea has been prevalent on the left, for example Prof John Griffith. To be fair, you can see the context of this argument in considering fairness of judges across generations. By the 1990s, tensions existed over immigration asylum seekers. There is an irony of right-of-centre politicians berating human rights, for ‘not being tough on particularly foreign judges’. This is what, according to Shami, may be a case of the ‘toff calling a kettle black’. The strange counterpoint to this, in domestic discourse, that ‘bills of rights are not necessary’.
To go further back, New Labour had become interested in constitutional reform, and why this is the case may be due to a belief in radicalism combined with responsibility. Shami admitted that it was hard to identify precisely the reasons. In any event, the Human Rights Act [1998], notwithstanding the concerns of the Press about privacy and the concerns of the Church about freedom of conscience, became enacted with cross-parliamentary support. Shami believes that such ‘special pleading’ were not fundamental to the legal underpinnings of the Act; those special caveats are ‘political fluff, in my view’. Inevitably, privacy and free expression can in isolation, but can also act hand-in-hand. It seems to Shami that there are faultlines in journalism, for example in privacy and expression. There are similar faultlines in religion, such as the right to subscribe, or not to subscribe, to a religion; or a ‘right to be a heretic’. Post-war fundamental rights have been well settled in radical movements, including national govenments; progressive rights and the welfare state enhanced life, but a later government finally allowed domestic debate about rights in the Convention. Tom Bingham considered this in the context of a number of rights, including right to life, fair trial, protection against torture, due process rights, freedom of conscience, right to education, freedom enjoyment of property, in a lecture for Liberty. In Shami’s view, the key to the human rights kingdom is a power not to disenfranchise communities – in legal speak, this is “equal treatment”, in human speak it is “empathy and respect”; this is the antithesis of discrimination. Shami described that Mr Justice Rabinder Singh had pointed out in a lecture in 2003 at the LSE, entitled “Equality, a neglected virtue”, on the importance of the protection of the human rights in the vulnerable.
So according to Shami the question would then become which of these rights which we seek to discard? The late, great Lord Tom Bingham had famously said, “‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British? There may be those who would like to live in a country where these rights are not protected but I am not of their number’.” Furthermore, rule of law and parliamentary sovereignty link us to the common law jurisdictions and Europe. According to Shami, there are four crucial conversations built into this within the Human Rights Act [1998].
The first conversation is the link between domestic and international human rights, effected by s. 2. This might seem like common sense; it is important that the language considers a duty to consider, but not be bound, by an international court. An internationally respected judiciary can participate in Strasbourg jurisdiction. The second conversation is between judiciary and parliament, effected by s.3 and s.4. This does spare the senior judiciary if some of the personal scrutiny elsewhere in the world, and allows Parliament to take ultimate responsibility. The third relationship is between the Judiciary and Executive through s.6 which includes strike-down of secondary legislation of the Executive (and instruments of primary legislation). This has annoyed Parliament.
The fourth conversation is between parliament (legislature) and the executive, s. 19. Some vocal critics, often pleading libertarian credentials, highlight this. They should be reminded it’s a statement of belief not a certificate of truth. The need for such analysis, combined with the JCHR and select communities, can strengthen human rights.
Shami argues that the New Labour government, brought equality and tackled discrimination, e.g. through repeal of ‘section 28′; in other ways, human rights were dishonoured in thought, word and deed.
According to Shami, it is possible that the tensions began properly with 9/11. New Labour’s authoritarian instincts were begun early on, with an ‘arms race’ over overfilling domestic prisons. A two year preparation period, between 1998 and 2000, seemed to delay a distorted human rights narrative. The Act tempered “the war on terror”; for example, the Belmarsh case (2004) concerning the indefinite internment of foreign terrorist suspects as a result of the conversation between the Supreme Court and parliament. The Strasbourg Court also provided further analysis on DNA retention and ‘stop and search’ powers, and the dangers of privacy. The Convention precipitated many national debates; e.g. in gay equality, the rights of victims of crime were enhanced. However, Shami then introduced the furore over control orders, detention periods, people being convicted for reading aloud names in the Cenotaph (e.g. peaceful protestor Maya Evans was convicted in 2005 for reading out the names of UK soldiers killed in the war in Iraq at the Cenotaph in Whitehall – see here), and an erection of a “Counter-Terror ring of steel“. Furthermore, much capital was wasted on identity cards; this made it easier for liberals, libertarians, and the Right to coalesce. Liberal Democrats and Conservatives were united against a background of financial distress.
Shami argued that the Coalition, an arrangement between the Tories and the LibDems, had appeared to begin promisingly. With little activity from the opposition, a review of counter-terrorism were underway, ‘stop and search’ became more tightly regulated, and possibly a bit of revision of the extradition system. The Coalition Agreement, she felt, had fudged the issue, but the mechanisms of the Human Rights Act makes these rights enforceable; hyperbolic statements have flourished, for example, those concerning cats and criminals, and David Cameron ‘being physically ill’.
According to Shami, “the Human Rights Act is in danger of “being too European, like the Euro, bratwurst or Silvio Berlosconi“.
Also, according to Shami, the problem, however, is that anti-Convention messages send out ‘mixed messages’ to younger democracies. The immediate direct effect of diluting the Human Rights Act would be to convert the Strasbourg to a Court of First Instance. Shami identified a number of problems with this.
Firstly, countries should be wary of damage to the Council of Europe, to receive instant applause. Secondly ‘Don’t bad-mouth the referees’. Shami has resisted the ‘cat calls to stick him on a plane, and credit to hear’. You cannot accept a foreign jurisdiction just because of the prospect of always winning there. Thirdly, there is a belief of “rights for the unworthy” – any of us can seem suspicious, and the same person can be a victim and perpetrator; it ignores the cost of throwing people away. Fourthly, ‘rights inflation’ may occur – e.g. with prisoner voting. The final criticism is not primarily based on a myth or misunderstanding; it represents a fault line. You believe in the rights for Englishmen, for the rights of human beings everywhere? The Convention system recognises nation states (e.g. unauthorized entry into a county), but rights are built on humanity, rather than citizenship. The notion based on government responsibility applies well to extradition; the distinction between US and UK rights is not helpful.
So then will a Botox Bill of Rights confound its critics? This is a ‘cut and paste’ version of human rights wrapped up delicately in a UK flag. A group of eminent lawyers cannot draft away the problems with human rights, but instead instead a lot depend on political leadership.
Why human rights? What does it mean for dignity? Shami felt that it’s quite telling that an important way to support human rights in Egypt is to support human rights in the UK. Shamir referred specifically to Human rights activist Hossam Bahgat.
I asked specifically about Shami’s view on extradition, with reference to the well-known examples of Gary Mackinnon and Richard O’Dwyer. Shami said the cases were particularly troublesome from the perspective that human rights are universal to all, but that the U.S. appeared to be assuming jurisdiction of cases who had never set foot in the country. Shami said it was particularly worrying that, even if they received a fair trial in the end, the process of waiting for such decisions had been very distressing. Shami signposted the “Migration Watch” campaign of Liberty, as described here:
Extradition is the transfer of an accused person from one country to another country that seeks to place them on trial. Extradition is an important part of international criminal law, but there should always be safeguards that ensure extradition serves the interests of justice, that an individual is only transferred when the complaint against the accused is genuine and backed up by evidence. Changes in recent years have damaged traditional British protections against unfair – or summary – extradition. Following the Extradition Act 2003 British residents can be removed to stand trial in another country under a “fast-track” extradition system. This means that a British court never gets to consider whether there is evidence to justify the charge. This agreement is in place with European Union and certain other countries, based on an assumption that the country seeking extradition will never do so on spurious grounds. TAKE ACTION We believe fast-track extradition is justice denied. Read about ourExtradition Watch campaign for fairer extradition laws.
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