ON SUNDAY MORNING early, switching smartly — heathen that I am — from Radio 4 to Radio 5 Live to avoid the ever-mournful Act of Worship, I came across a battle concerning the Human Rights Act, between Lord Lester of Herne Hill, a Lib Dem lawyer, and George Pascoe-Watson, political editor of
The Sun. The two men were contesting in a state of absolute mutual incomprehension. It was like watching a fight between an octopus and a Biro; neither knew what to do with the other at all.
The Sunman was in full populist mode. Foreign criminals, hijackers and terrorists were joining domestic reoffenders in wandering around unmolested, threatening the well-being of Brits, and it was almost entirely — Charles Clarke having departed — the fault of the HRA.
Their gavels muffled by the namby-pamby provisions of this Euro-inspired bit of legislation, beefy British judges were being forced into almost Andrexian softness. The HRA ought to be scrapped, the convention it was based upon ought to be repudiated and if that meant Britain taking itself off from out of the EU, then so be it. Or something along those lines.
Lord Lester’s response began with the idea that Pascoe-Watson was animated by Rupert Murdoch wanting to avoid the privacy implications of the HRA, and thus save his newspapers (including, presumably, this one) from being sued for invasion of privacy by irate celebrities. His Lordship was not pressed to explain why just about every other popular paper and populist commentator in the land was taking the same view.
I think it was Lord Lester’s opinion that there was no case to answer because (or so he seemed to be suggesting) there was no real problem. Others taking a similar line, however, have emphasised that insofar as the current moral panic about killers on the loose is in any way justified, it is all down to “maladministration” — ie, it’s the Government’s fault. If it was just more managerially competent then we’d all be happy, and the right people would be in jail and the wrong ones wouldn’t. In any case the Government really shouldn’t be criticising judges, because when governments criticise judges, freedom is threatened. Though not, of course, the other way around.
One surefire way of knowing how an argument is going these days, is to see which side has David Cameron on it. The man is like an old-fashioned winger — he can run like hell in one direction and then suddenly stop, and run in the other. Ditching liberalism for the moment, he is now to be found in deepest consideration of the possibility of repealing the HRA.
And the Government? Doing what I have always liked least about it, imagining itself to be in deepest communion with voters, when in fact succumbing to a bout of media populism. I loathe Tony Blair’s Henry II moments, which are so fundamentally different from the principled way in which he has dealt with, say, foreign policy. Ever since Jack Straw, then Home Secretary, joined the outcry against Mary Bell receiving a perfectly justifiable amount of money from Gitta Sereny’s book about her, I have cringed when these occasions have arisen.
This spasm — based originally on the Afghan hijackers case — forced the Lord Chancellor into the absurd position of identifying some real problems in the release of the rapist Anthony Rice, while pretending that this was also what the PM had been talking about. “This is not,” said Lord Falconer of Thoroton, “about an attack on the judges, this is about making clear in particular areas — like the release of prisoners who might be a danger to society — that public safety comes first.”
This is a perfectly respectable position for a minister to take, providing he tells us what comes second, and what the consequences of it coming second are. What comes second, we must imagine, is the release of prisoners who may not be such a danger to society, but who you just can’t be sure about. Just as the easier deportation of offenders to countries where they might be harmed may well put British public safety first, but increases the chances of some fraudster being slaughtered back at home.
What enrages me, however, about this debate is that almost no one wants to face the consequences of their own preferences. Take this, from a Guardian editorial yesterday. “The public,” it opined, after laying into the Government, “is not divided into a majority who care about security and a minority who care about liberty. Everybody cares about both security and liberty at the same time.”
This is surely just a piety, designed to avoid any notion of hard choices. Plenty of people care more about one than the other. Plenty of people believe that one is threatened more than the other. The idea that there is a universally accepted equilibrium level of security and liberty, any disturbance to which is caused by “maladministration”, is simple wishfulness. You want it to be so — it is so. In fact this is a deeply contested area, and for good reason.
Take deportation again. Lord Lester, unlike some of the Government’s libertarian critics, accepts the idea that suspected terrorists should be returned to countries with a history of torture, provided there are adequate monitoring procedures. He knows that it is perfectly fair for people to ask why French judges, for example, can send unwanted extremists back to Algeria, whereas it would seem most unlikely that British judges would. Can those who want a tightening up tell us, for example, just how trivial does a past offence have to be for us to not want the foreign offender deported to possible torture or murder?
The biggest objection to the HRA is that it helps to create a situation in which judges effectively make law, not elected politicians, who are closer to the people. In the US, where judges are also elected, this problem does not exist so much. A second argument against the Act, heard this week, is that it seeks to make concrete an entirely abstract set of principles and that this inevitably leads to confusion and bad decisions.
I don’t accept either argument. I believe that the Human Rights Act is a sensible and inspiring piece of legislation, which allows judges considerable leeway in the interpretation of human rights and therefore justifies continued public debate about those interpretations. Judges must be open-minded enough to welcome such discussion. They are not infallible or beyond criticism. In turn, we should be more adult about the choices.
As to the abstract nature of human rights, well you sure as hell know when they’re not there — when there isn’t freedom of expression or freedom of worship, when there is no right to a fair trial, or right not to be subjected to arbitrary detention, where there is torture or gross abuse.
I was perhaps a latish convert to the struggle for democracy and freedom. But I can see that at the moment that struggle is compromised by the mistakes of some of its strongest champions — by the error of Guantanamo, the crime of Abu Ghraib and the insidious acceptance by some in the US of torture. I can imagine few greater symbolic mistakes, few greater admissions of weakness, than the repealing of the Human Rights Act.
Read David Aaronovitch’s blog here
