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Universal human rights: too important to lose
Replacing the Human Rights Act with a British Bill of Rights would be an injustice and a tragedy, says Louise Christian.
I did my first ever inquest representation as a young law centre solicitor nearly 36 years ago in January 1979. A 16-year-old boy detained in a youth detention centre in Abingdon had set fire to the mattress in his cell. There was strong evidence, in the form of moving poems he had written, that it was a cry for help, not a suicide bid, but the centre was in lockdown for the night and by the time the alarm was raised and all the necessary doors unlocked, he had suffocated to death. There was no jury, no legal aid and virtually no accountability. My questioning kept the inquest going for five days – four more than intended – but I was repeatedly accused by a hostile coroner of going beyond its narrow remit.
Nowadays, however, we have a legal system that recognises that the death of a vulnerable child in the state’s care requires fundamental questions to be raised, gives the bereaved the right to legal aid and, if necessary, to access expert evidence, and allows a jury to deliver a narrative verdict that goes beyond a short-form verdict to deliver criticisms of the failures that led to the situation.
The huge change in the care with which we now investigate these and other deaths is just one of the massive benefits brought to our legal system by the Human Rights Act 1998. In countries not signed up to the Council of Europe, people can just disappear or die in custody with no investigation. In South America or Middle Eastern countries, impunity for the state trumps human rights.
A ‘British Bill of Rights’ is a contradiction in terms, since the most crucial feature of rights is their universality.
We now have a government that has pledged to repeal the HRA and bring in something called a ‘British Bill of Rights’ – a contradiction in terms, since the most crucial feature of rights is their universality. Assuming we don’t leave the Council of Europe and the legislation is not struck down by the courts as discriminatory, this might lead to a situation where British citizens could enforce their rights in UK courts but others could not. But unless we leave the Council of Europe, non-British citizens will still be able to take their cases to the European Court of Human Rights.
This takes me back also to a ECtHR case I brought in the 1990s before the HRA came into force, Osman v UK App No 23452/94, 28 October 1998, still the leading authority on article 2, the right to life. A schoolteacher in Hackney became dangerously obsessed with a Turkish Cypriot pupil of his, Ahmet Osman, and became increasingly psychotic. After being transferred away from the school, he embarked on a whole criminal course of conduct aimed at both Ahmet’s family and at teachers at the school whom he blamed for his transfer. The police did nothing in response to complaints from the family and the school. In the end he used a sawn-off shotgun to shoot dead Ahmet’s father, to wound Ahmet himself, and to wound the deputy headmaster and shoot dead his son. When the police caught him, he said: ‘Why didn’t you stop me? I gave you all the warning signs.’
On behalf of Ahmet and his mother, I brought a case against the police for negligence. It had to be fought and lost in the High Court, the Court of Appeal and then finally to be refused permission to go on to the then House of Lords, before we could go to Strasbourg. It then took years to get there, where a claim against the UK government was successful, on the basis that UK law should not impose a blanket ban on negligence cases against the police. Nowadays, it takes twice as long to get to the ECtHR because of an increased backlog. But, now as then, domestic remedies still have to be exhausted first. If the British Bill of Rights did not apply to non-British citizens, they would face long delays in enforcing their rights and the system would be more expensive both for them and for the UK government. How can this conceivably make sense? And do we really want to place ourselves alongside Turkey and Russia, which have no domestic human rights legislation and are effectively pariah states of the Council of Europe – most of the reason for the terrible backlog?
Sensible Tories like Dominic Grieve and David Davis know that the repeal of the HRA would be a tragedy for the UK legal system and will bring shame on a country that led the way in arguing for universal human rights. They also know that it has nothing whatsoever to do with arguments about staying in or leaving the EU. It is going to be up to all of us now to try to get the arguments across to the British public, so that the ignorance that has informed the debate so far will not be allowed to triumph. ■