The problem of ‘rebalancing’ Article 8
8 May 2013
I have written an article for the New Statesman on the announcement in today’s Queen’s Speech about Article 8 ECHR. It is here. Enjoy!
For more, see:
- Update, 9.5.13 – Dr Mark Elliott’s excellent post, in which he considers the likely outcome of a legal challenge to the new legislation, if it mirrors the recent Immigration Rules changes. Dr Elliott thinks this is likely to lead to a (perhaps planned) confrontation with Strasbourg: The Queen’s Speech, the Immigration Bill and Article 8 ECHR
- A human rights reality check for the Home Secretary
- Why the Home Secretary’s attack on human rights judges is like a Bakewell tart
- Another critique of the new Immigration Rules’ codification of Article 8
Having read the New Statesman article, I can’t say it has changed my mind on Article 8. Firstly wasn’t article 8 supposed to be about preventing the Gestapo or KGB taking away a member of your family in the middle of the night, never to be seen again? The authorities would then refuse to say what happened to them. That is a long way from a footballer using article 8 to hide an affair with a model, or a drug dealing foreign gangster getting a British citizen pregnant and using article 8 as his get out of jail card, when it comes to deportation, even if he pays no maintenance and has no interest in the family life that is supposedly being protected by the judge.
The problem with human rights is they are between an individual and the state, but the state also has the duty to care for the many, not just the individual. Politicians such as Theresa May also have democratic legitimacy, unlike judges. That probably didn’t matter so much when politicians made laws and judges interpreted them, but human rights are not laws, they are simply statements of principle. Its not far from giving a single unelected person a piece of blank paper and asking then to say what the law is. Judges have political and personal views, like any one else. OK judges make case law, but usually when there is no law, not in defiance of the legislature.
The only law here is the Human Rights Act created by parliament and what parliament gives, parliament can take away. If parliament agrees that article 8 needs to be pre-interpreted by parliament then that is their democratic right. In a way the judges only have themselves to blame, one day the Conservatives will form a majority government and the HRA, ECtHR will be toast anyway. Perhaps defining what article 8 actually means in Britain, may save human rights law here, as the abuses will be reduced and political and public anger subsides.
What is really happening, is what should have happened in the first place. Human Rights are being converted in to acts of parliament or law. The judges are going back to interpreting the law, as they will be able to decide what is exceptional. If they find too many cases exceptional then their decisions will be open to challenge by the government. Its odd that the political right want a balance between rights and the good of the nation and the liberals want absolute human rights in its purest form, no matter what the consequences. Whose the extremists now?
I sometimes wonder whether this country is being run by David Cameron or Paul Dacre.
A good article, and there needs to be more understanding about Article 8, which has been unjustly vilified in recent years by various media and politicians.
Human rights are supposed to be universal, applying to all humans. It appears to me that that either our judiciary is not properly interpreting the European Convention on Human Rights, or else these cases are not being properly, or fully, reported in the media. Either way, it’s essential that conventions on human rights are not undermined.
I have written my own blog about this called, ‘Europe: foreign criminals and human rights’
http://eu-rope.ideasoneurope.eu/2013/05/05/europe-foreign-criminals-and-human-rights/