The Round-Up – who’s on the Rights-side this election?
22 May 2017
After one leaked manifesto and many accusations of plans to bankrupt the UK, we have finally been presented with the official pledges of the main parties. Indeed, the manifestos appeared to herald good news for the European Convention on Human Rights, to which the Conservative Party have thrown a lifeline.
Previously Theresa May had criticised the constraints placed on government by the European Convention on Human Rights, which is enshrined in the Human Rights Act, and had advocated that the UK withdraw from the Convention. She was particularly vociferous as Home Secretary after struggling to deport former terrorist suspect Abu Qatada.
Yet in spite of this the Conservative manifesto has stated that any plans of withdrawal have been stayed – that is, at least for the next five years while Brexit negotiations are underway. Once the UK will have left the EU, the Conservative party has promised then that they “will consider our human rights legal framework”.
However, the Conservative Party has confirmed its intentions that the military should opt out of the ECHR during conflicts. This plan had previously been announced by Theresa May and Defence Secretary Michael Fallon in October last year. By derogating from rights during times of conflict, May declared she hoped to “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. At the time, it was met with criticism from a number of sources, including Liberty, former legal military adviser Nicholas Mercer, and the Law Society.
On the other hand, the Labour Party’s manifesto was quick to remind readers that it had been under its helm that the Human Rights Act was originally introduced, and it pledged to retain the legislation. Moreover, rather than having plans of derogation from rights for the military, the Labour party has instead advocated a foreign policy “guided by the value of peace, universal rights and international law”.
Where can I read more?
Elsewhere in the manifestos, other such rights issues loomed large: the departure from the EU, immigration and refugees, equality at home and abroad, and workers’ rights in the UK.
You can read the Conservative and Labour manifestos for yourself, or have a look at the key points from news outlets:
IN THE NEWS:
Muhammed Rabbani, the international director of Muslim advocacy group Cage, has been charged with a criminal offence under the Terrorism Act after refusing to hand over passwords to his computer and phone on arriving at Heathrow Airport. Cage is an independent advocacy organisation, which was first established to campaign against the detention of prisoners in Guantanamo Bay and now endeavours “to empower communities impacted by the War on Terror”. Rabbani had flown into Heathrow from the Middle East last November, and when he refused to hand over his passwords he was arrested. He has since stated that his reason for objecting was that he was in possession of a client’s evidence regarding a torture claim, and he was thus unwilling to compromise client confidentiality. Rabbani was charged on the basis that “he did wilfully obstruct, or sought to frustrate, an examination or search under Schedule 7 of the Terrorism Act 2000, contrary to paragraph 18(1)(c) of that schedule”. The powers of stop and search granted under Schedule 7 of the Act have previously been criticised by Liberty as “ripe for overuse and abuse”. The rights group warned that they may be “used in discriminatory fashion, with stops based on stereotype rather than genuine suspicion”. Rabbani is currently on bail and will appear at Westminster Magistrate’s Court on 20th June.
IN THE COURTS:
Commodore Royal Bahamas Defence Force v Laramore: the Privy Council found that a memorandum prohibiting a Muslim officer of the Royal Bahamian Defence Force from excusing himself during Christian prayers hindered his enjoyment of freedom of conscience under Article 9. Whereas previously non-Christian members of the Force were allowed to fall out during the Christian prayers held four times a week during colours parades, a new Memorandum issued in 2006 dictated that all personnel were to remain present. Petty Officer Gregory Laramore, who converted to the Islamic faith in 1993, challenged this Memorandum as unconstitutional on the grounds that article 22 of Chapter III of the Constitution, enacted in 1973, provides that no person shall be hindered in the enjoyment of his freedom of conscience. The Privy Council concluded that there was such a hindrance in a way which was incompatible with Mr Laramore’s Muslim conscience, and that it was not justified by arguments for the importance of uniformity of behaviour. It therefore advised that the 2006 Memorandum be declared unconstitutional with respect to the conduct of prayers during morning and evening colours.
Gumeniuc v Moldova: the European Court of Human Rights held that an order to detain the applicant for 30 days after he failed to pay a speeding fine of four euros was a violation of his right to liberty under Article 5. Andrei Gumeniuc had been stopped by the police for speeding and given a fine of 60 Moldovan lei – equivalent to about four euros. When he failed to pay the fine a hearing was held in his absence and the Ocnita District Court ordered his administrative detention for a period of thirty days. He was then arrested, but that very afternoon he suffered from a heart attack and was taken to hospital. He soon recovered and was released. The Court noted that there was no indication that the applicant had even been informed of the proceedings, which, moreover, the Ocnita District Court had treated as a mere formality with no assessment of the specific circumstances of the case. The Court therefore, in concluding that his conviction was in flagrant breach of the guarantees of a fair trial, held that his detention must be regarded as arbitrary and as such not “lawful detention” justifiable under Article 5.
Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others: the European Court of Justice responded to a reference from the Netherlands’ highest court regarding the rights of third-country nationals whose children are EU nationals. The lead individual in this case was Ms Chavez-Vilchez, a Venezuelan national who had entered the Netherlands on a tourist visa in 2009. She had a child from a relationship with a Netherlands national, and the family had lived in Germany until 2011 when she and her child were forced to leave the family home. She is now solely responsible for the child. The Court advised that the Netherlands court must assess the case in light of the fact that forcing a third-country national parent to leave might have the effect of depriving the child who was an EU citizen of their genuine enjoyment of the substance of the rights conferred by virtue of their status. The Court advised that, even if one parent who was an EU citizen could assume sole responsibility for the primary care of a child, that would not of itself be a sufficient ground to refuse a residence permit to the other parent who was not an EU citizen; rather, it must be determined whether the relationship of dependency between child and the third-country national parent was such that refusing a right of residence would compel the child to leave the EU.
by Poppy Rimington-Pounder
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Important to note that the Tory manifesto says it will not repeal or replace the Human Rights Act while ‘the process of leaving the EU is underway’ which offers a stay of execution only until March 29th 2019 – half way through the next Parliament – while at the same time committing it to a review of the law. Given it is understood that Theresa May and her team view anything short of withdrawal from the Convention as pointless, the fact that the manifesto says a Tory government would not seek to leave the ECHR before the end of the next Parliament suggests that no reforms will be pursued before 2022 (save those concerning derogation during times of conflict). Nevertheless, such a review could provide a vehicle for making the case and building support for such a measure following the 2022 election. Moreover, as Nigel Farage demonstrated last week, human rights and the ECHR will continue to be collateral in the Brexit negotiations. In sum, it seems that the almost decade long phoney war over the HRA and ECHR is set to continue.