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Thursday, October 22, 2009 

A very much precendented case of newspaper hyperbole.

Last night Keir Starmer, the head of the Crown Prosecution Service, gave his usual annual lecture to the public prosecution service. It was a typical lawyerly sermon, touching on both human rights and the independence of the prosecutors. Those who were there and awake probably didn't give it a second thought; Starmer gave a decent defence of the Human Rights Act, but hardly the strongest and most detailed one ever. The Telegraph however thought that this was somehow worthy of a splash. "An unprecedented attack", it bellowed, and since then the usual Tory suspects, the two Davies', have added their voices at this apparent broadside at Conservative policy.

Starmer, as it happened, didn't so much as mention the Conservatives, probably because he wasn't just attacking the Tories but also Labour. Here is what he did say:

However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

While the Tories have promised to repeal the HRA and introduce a "British" Bill of Rights in its place, without of course providing any detail whatsoever as to what these rights would be and which might be different to those enshrined in the HRA, Labour has also continued to talk about a bill of Rights and Responsibilities, even though it has been shelved for now. These Rights and Responsibilities, Jack Straw hoped, would give a British feel to the HRA. It doesn't matter that, as Starmer points out, the European Convention of Human Rights, on which the HRA is based, was mainly drafted by us Britishers, because it's "European" in origin this somehow infers that it's a foreign creation imposed on us. The Sun, the main campaigner for a repeal of the HRA, has so often mistakenly referred to the ECHR as being a construct of the European Union when it is not and is entirely separate from it that it's difficult to believe it isn't being done deliberately.

The main flaw with any plan to repeal the HRA, something which Starmer doesn't mention, is that it's difficult to believe that we would also then leave the ECHR in its entirety, something we would have to do to make sure that the "criminals' charter" doesn't interfere with our law in any way, shape or form. All repealing the HRA will do is mean that breaches of the ECHR will not be able to heard in our own courts; instead those seeking redress will have to go to Strasbourg, and wait potentially years for their case to be heard, such is the backlog which has built up there and continues to mount. As Starmer argues, it's absurd that rights which the rest of Europe has never had any problem with should "stop in the English Channel". After all, even Russia is signed up to ECHR, even if it isn't as proactive in falling into line with its rulings as the more democratic nation states of Europe are. The closest Starmer gets to really attacking those who wish to do away with the HRA is this line:

And it would be to this country's shame if we lost the clear and basic statement of our citizens' human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.

It doesn't really help the Tories' cause that Starmer is entirely right. The main reason why the Conservatives want to get rid of the HRA is not because it's a criminals' charter or any of the other things which its critics say it is, but because from the very beginning the press, and especially the Sun and the Daily Mail, have been worried about its implications for their business model. Article 8, the right to privacy, has meant that the tabloids can no longer be certain that their celebrity stories and sex scandals will get into the papers unmolested, or if they do, that they won't then be brought up before the beak afterwards. There is, it must be noted, potential for abuse of Article 8, but this is slight when compared to the overall benefits which the legislation as a whole brings. In any case, the real threat to press freedom is not Article 8 but our libel laws and the tenacity of the libel firms and their pursuit of "super-injunctions", as last week's assault by Carter-Fuck on behalf of Trafigura showed. The supposed "madness" which the HRA has brought is partially dealt with by Starmer, although not fully:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence.

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many.


Some of these I've touched on before, but it's indicative of the misinformation which surrounds the HRA that the Telegraph in its report repeats the myth that Learco Chindamo, murderer of headteacher Philip Lawrence, couldn't be deported back to Italy when he finished his sentence because of the HRA. It was in fact because of the EU's 2004 directive on citizenship, but as usual the initial myth has become fact.

Has Starmer though strayed into politics with his pronouncements, something that the head of the CPS shouldn't be doing? Despite the Telegraph's suggestion, the previous head of the CPS, Ken Macdonald, did something rather similar in a speech to the Criminal Bar Association, where he made clear his view that terrorists should always be treated as criminals, and that there was no such thing as a "war on terror", something uncontroversial now, but rather more heated back in 2007 when the attempt to ram through 90 days without charge was fresh in the memory. Macdonald also made clear on a number of occasions that he felt 28 days detention without charge for terrorist suspects was sufficient, something which was hardly popular with the government, and which was definitely straying into politics. Few now object when the police demand new powers, although they should; why shouldn't the head of CPS express his view that the Human Rights Act shouldn't be abolished? Is it that it's only when it's the government that it's critiquing that it's OK, when if it's (perhaps) the opposition that it isn't?

The Tory plan to repeal the HRA has always struck me as something which they're likely to forget about once they actually do get in power. Labour has thrashed around hopelessly with the Rights and Responsibilities idea, and if you really believe that the Tories are more suited to constitutional change for the better, I don't think you've been paying enough attention. It's true, as Henry Porter has argued repeatedly, that the HRA has not prevented this government from its attacks on civil liberties, but the key to that is not more legislation, but better governance in general. It seems just as unlikely we will get that from the Tories.

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The Tory proposal is as you say misleading unless accompanied by withdrawal from the Council of Europe and the EU. It is ridiculous, and the idea that it is preferable to go to Strasbourg to discover that our laws are dodgy is naive.

The proposal also fails to address one lopsided element of the current settlement. The devolved legislatures and governments are not free. their constituent Acts provide that the government and legislature must act in accordance with the ECHR or else the action is ultra vires and can be struck down. IT would be an odd system whereby an Act of the Scottish parliament (or SSI) is struck down as ultra vires for being contrary to the ECHR and a Westminster Act (or SI) remains unchallenged. However, the Tory proposal is ill thought out and does not address this anomaly.

Your conclusion (silently ignoring it) is I think the most likley solution - provided that the curretn shadow cabinet member remains in post. He seems to have liberal instincts on these legal matters. How he got to his current position in the midst of the posturing of his leader I've no idea.

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