Last week, Home Secretary Theresa May made a speech that could fundamentally alter the Conservative Party’s approach to human rights. The Party's currently policy position is that it would like to replace the Human Rights Act 1998 with its own Bill or Rights, but it would not derogate from the European Convention of Human Rights.
Theresa May has put that all in doubt. In her speech, she said:
“…And we need to stop human rights legislation interfering with our ability to fight crime and control immigration. That’s why, as our last manifesto promised, the next Conservative government will scrap the Human Rights Act, and it’s why we should also consider very carefully our relationship with the European Court of Human Rights and the Convention it enforces. … So by 2015 we’ll need a plan for dealing with the European Court of Human Rights. And yes, I want to be clear that all options – including leaving the Convention altogether – should be on the table. (my emphasis)
Obviously, with UKIP snapping at the Conservative Party’s heels, Mrs May's anti-European rhetoric went down well with those elements that are allergic to anything European. However, it is only when you deconstruct the implications of Mrs May’s message, do the risks emerge.
The first point to stress is the European Convention on Human Rights (ECHR) is not “European”; it is as British as roast beef and Yorkshire pud. The Council of Europe which provides judicial oversight of the Convention through its Court and Parliament involves 47 European States; the Council of Europe was formed by the Treaty of London 1947. The ECHR is most important product of the Council of Europe; it was drafted by UK Government Civil Servants and identifies the characteristics of a democratic state and promotes the rule of law.
Whenever you read of the ECHR text, think “totalitarian regime”. For instance, Article 1 (no slave labour; abolished in the UK in 1833) and Article 2 (right to life) were absent from Hitler’s concentration camps and Stalin’s gulags. Article 6 (right to a fair trial; idea established in the UK by Magna Carta in 1216) and Article 8 (respect for private life); both are absent when the judiciary is beholden to a dictator or when the writ of a secret police force runs riot.
When Mrs May says complete withdrawal from the ECHR is on the cards, she is opening the door to a range of possibilities that go far wider than her concerns which are limited (in her speech anyway) to immigration or crime. For instance, such a move could permit a return of capital punishment, imprisonment without charge, extra-ordinary rendition or, as the Americans used to say of Abu Ghraib "enhanced interrogation techniques" and "alternative set of procedures".
Eric Howe, the First Data Protection Registrar, in his valedictory Annual Report in 1994 got it spot on. He noted that the history of Europe was littered with totalitarian regimes and concluded that “democracy, liberty and freedom were fragile flowers”. In my view, the ECHR is the earth that sustains those flowers; pluck them, and these flowers eventually wither.
So, if the UK actually withdraws from all of the ECHR, perhaps under a future Prime Minister May, it is also withdrawing from the institutions and Conventions that depend on, or support, the ECHR. This includes Council of Europe Convention No 108, which derives its authority from Article 8 (respect for private life) of the ECHR. And if Convention No 108 goes, then so does the UK’s need for a Data Protection Act.
However, if Prime Minister May does withdraw from the ECHR, I suspect losing data protection could be the least of our worries.
Refererences
Mrs May's speech: http://conservativehome.blogs.com/thetorydiary/2013/03/full-text-of-theresa-mays-speech-we-will-win-by-being-the-party-for-all.html
One Response
For interest, I think the Article 8 rights (respect for private life, family, home and correspondence) can be traced back to Entick v Carrington (1765) where Lord Camden as Chief Justice of the Court of Common Pleas stated:
“no power can lawfully break into a man’s house [respect for home?] and study to search for evidence against him; this would be worse than the Spanish Inquisition; for ransacking a man’s secret drawers and boxes to come at evidence against him, is like racking his body to come at his secret thoughts. [respect for private life?] The warrant is to seize all the plaintiff’s books and papers without exception, and carry them before Lord Halifax; what? Has a Secretary of State a right to see all a man’s private letters of correspondence, family concerns, trade and business?” [right to family life and respect for privacy of correspondence?].