Roger Smith welcomes a government report clarifying the Human Rights Act – but asks why it took so long


How pleasant, particularly in the midst of the furore over Lord Carter’s plans for the future of legal aid, to praise Lord Falconer and the Department for Constitutional Affairs (DCA). You might argue that their review of the implementation of the human rights was somewhat late, that it required rather a lot of time within cabinet for a coherent line of defence of a flagship government policy to emerge, and that the overall government position is not entirely perfect. However, all in all, the department and its ministers are to be commended for this report.



Much criticism of the Human Rights Act comes by way of myth and fiction. The Sun newspaper has been a major offender. It has run a campaign against the Act and led on the alleged case of the mass murderer, Dennis Nilsen, who ‘received hardcore gay porn in jail thanks to human rights law’. Shadow Home Secretary David Davis has repeated this allegation without checking his sources. To be fair, Lord Falconer has challenged the factual basis of this before, but generally in lectures to students and not so much publicly on television broadcasts such as the BBC’s ‘Newsnight’.



Finally, the report nails the facts. Nilsen applied for permission to receive pornography in prison and failed. It was really a ‘dog bites man’ story. Similarly, the police might have given Barry Chambers a meal of Kentucky Fried Chicken while he was taking refuge on the roof of a building. However, this was part of a successful strategy to get him down and nothing to do with his human rights. This did not stop The Daily Telegraph or the Sun from arguing the contrary – the former under the rather prosaic headline ‘KFC meal ensures siege man’s rights’ and the latter at least exhibiting a bit of wit: ‘A finger nickin’ good farce’.



The only criticism one would make of the department is why it took so long. The DCA press office should have mobilised on the day these calumnies were circulated. However, better late than never. It is to be hoped that each of these stories now has a stake through its heart, ensuring a final demise.



A theme of the report is the distinction between the Human Rights Act and the European Convention on Human Rights. A major source of friction between government and the judiciary has been the consequences of the decision of the European Court of Human Rights in Chahal. This places greater weight on the prevention of torture than on a state’s concern for national security and prevents the transfer of anyone in this country to a place where there is a significant risk of that person being tortured or ill-treated. This decision, as the report points out, predates the Human Rights Act and would, whatever the state of domestic law, be binding on the UK as part of the jurisprudence of the European Court. Even David Cameron accepts that we should remain in the Council of Europe structure.



Indeed, as the report again says, the whole debate about whether we should have a ‘British bill of rights’ looks somewhat nebulous in the light of any continuing membership of the Council of Europe. A bill of rights that sought to restrict the convention would be a nonsense. As the report says: ‘The government would remain obliged to comply with all the rights in the European Convention on Human Rights. And the citizen would remain able to take a case to Strasbourg. On the other hand, government, citizens and the courts would be confronted by a separate (but presumably overlapping) set of rights for the purposes of domestic law.’ The only form of British bill of rights that makes any kind of logical sense is one that extends the rights of the convention. This was the Labour Party’s original intention.



The report concludes that more training is required. No harm in that. However, there is a surprising omission. The government’s official view of the future for human rights has been firmly yoked to the context of equality. The Equality Act 2006 creates a Commission for Equality and Human Rights, controversially combining the three existing anti-discrimination commissions with a champion for human rights. The commission’s Web site proclaims that it ‘will champion the diverse communities that make up modern Britain in their struggle against discrimination. It will also promote awareness and understanding of human rights and encourage good practice by public authorities in meeting their Human Rights Act obligations. New powers to take human rights cases will give a new arrow to the bow of many minorities who suffer discrimination’.



How strange, therefore, that in the context of an express commitment that the government ‘must take a proactive, strategic and co-ordinated approach’, the DCA makes no mention of the government’s plans for the future of human rights. Could this be because departmental responsibility for the new commission lies elsewhere? If so, how strategic and co-ordinated is that?



Nonetheless, as a tactical response to ill-informed criticism, this report is a good defence of brave and exemplary legislation.



Roger Smith is director of the law reform and human rights organisation Justice