I am not a legal academic. I am not a human rights lawyer. I am just a criminal hack. I have been a criminal hack for twenty years. I was a criminal hack before the introduction of the Human Rights Act and have been ever since.
I have never appeared in Strasbourg and (this seems important to many non-lawyers) I have never earned a single penny out of the Human Rights Act.
But this much I do know. Criminals are not routinely acquitted because of the Human Rights Act. They are acquitted because ordinary people, the everyman/woman that Grayling claims to speak for, decide that they should be found not guilty. Sometimes that decision is influenced by incompetency or a lack of funding in the system leading to poor prosecution. I cannot think of a single verdict in the last 14 years that has been as a result of the Human Rights Act.
In all that time, since the HRA was introduced, I have heard the Act quoted in argument a handful of times. More often you hear reference to the fundamental rights it seeks to protect. Things like the right to a fair trial. It will be deployed as a means of persuading the Judge to use her discretion in applying the domestic law. I have never witnessed a Crown Court Judge who felt their hands were tied by a decision of the European Court.
If you read the HRA it simply requires courts to take into account any decision of various aspect of the European Union machinery. Judges in this country are still taking the decisions that matter in the criminal courts of this nation, applying our national laws under the umbrella of protections forged after the Second World War.
So I ask you, just what is wrong with that?
I appreciate that there are instances when the general public feel that human rights lead to some startling outcomes. These rarely occur within the sphere of strictly criminal law. They may sometimes happen with matters ancilicary to criminal law, such as the deportation of foreign criminals. I am afraid these are exactly the sort of situations when courts do something unpopular because it is the right, not necessarily the popular, thing to do.
It is important that the courts are there to protect the rights of every individual that comes before them. It is right that we all know what those fundamental rights are.
If there is a need to make some refinements then these should be carefully though through revisions rather than declarations of abolishing, repealing and abandoning. The Conservative proposals have an element of the Emperor’s new clothes about them as described by Carl Gardner in his blog. What is not required is a campaign that seems to suggest human rights are a bad thing.
The proposals contain some preposterous elements. There is a suggestion that the fundamental rights may apply in matters that are serious but not when the matter is trivial. Who decides that? Why does the right to a fair trial depend on whether something is trivial or serious? The idea that we should withdraw from the Convention? That is withdrawing from the EU. Without referendum but as a fit of pique. Politics of the playground.
The language of the proposals and the way they are framed play upon and accentuate every single misconception about human rights and the courts. It is irresponsible. It is misleading. It is reprehensible.
Do I think that junking the Human Rights Act will stop Judges doing the right thing? No I do not. Do I think it is a ridiculous, ill informed policy proposal designed to pander to a certain sector of the electorate? Absolutely. What would I rather happen? I would rather the Government respected human rights more than they do, and that they demonstrated to the people of this nation that human rights are to be cherished, not decried.
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A view from the North 