Thursday, 17 July 2014

Behind the Headlines on Human Rights Law Reform in the UK

This has been a bad week for the protection of civil liberties in the United Kingdom. The 'emergency' legislation on data retention and privacy passed, having been rushed through by Parliament with little meaningful debate. The new Act will oblige internet and communications providers to retain users' data, and to build their technical capabilities to ensure that they will be able to comply with any interception request from the UK Government at any time.

This was also the week when pro-human rights Attorney General Dominic Grieve was replaced with Jeremy Wright, the man who banned prisoners from receiving books in his former role as prisons minister. And this morning, the Conservatives announced plans for new legislation that would allow Parliament to choose which rulings of the European Court of Human Rights it would like to comply with.

What are the justifications for these assaults on human rights in the United Kingdom? On the European Court of Human Rights, the consensus among the government appears to be that the Court has gone 'too far'. On BBC's Today programme this morning, we were treated once again to Teresa May's account - to raucous applause - of how the ECtHR had stopped a terrorist from being deported because 'and I am not making this up - he owned a cat'. The rulings on prisoners' right to vote have also proven controversial. The new data retention act was justified with reference to an ECJ ruling (handed down in April, but bizarrely giving rise to an emergency in July!) on the illegality of the EU's wide-ranging data protection directive.

I thought it would be useful to examine the judgments in question. On the 'cat' judgment, my searches of BAILII proved fruitless. It transpires that this was not a decision of the European Court of Human Rights, nor did it concern a terrorist. It was a decision of a lower immigration tribunal on the deportation of a Bolivian man who had overstayed his visa. The cat was not the deciding factor in the case, but rather put forward as evidence that he enjoyed a stable family life with his girlfriend, the co-owner of their feline companion.

In the prisoners voting case, it is true that the Court found that the current restrictions on the right to vote were indiscriminate, but it also emphasised the margin of appreciation that is afforded to states and declined to state exactly how UK law should be changed to comport with Article 3 of Protocol 1. In this manner, it left significant autonomy to the legislature to decide how to comply with the UK's human rights obligations. The idea that certain rights should not be granted to certain citizens because of their actions feeds into this government's increasing commodification of rights. Rather than viewing human rights as being afforded to all by virtue of being human, rights are seen as something that one has to earn.

What then, of the ECJ's ruling on data retention, which will allegedly make it harder for the police to apprehend terrorists and paedophiles? The judgment noted that it was necessary to collect communications data in order to prosecute individuals, but that such data collection and retention must be limited to what is strictly necessary. Further, it said, legislation 'must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data.' The wide-reaching new DRIPs Act (as it is known) fails to build in those guarantees. Moreover, perhaps, the government's assertion that the legislation both 'maintains the status quo' and was so necessary as to pass through emergency legislation with minimal debate in the houses of parliament is so obviously contradictory as to be almost farcical.

The government's (mis)representations on the background to, and the need for, these changes is therefore rather suspect. We can only assume that it fits in with a wider construction of the 'other' in Europe, demonised as devaluing 'British values' and needlessly meddling with day-to-day political life. Stanley Cohen has written about 'folk demons and moral panics', the phenomenon by which particular groups are presented as posing a threat to society to strengthen the power of a ruling class. But this time the enemy is those who strive for the achievement of fundamental human rights for people in the UK, while the government that opposes them seeks to take away those hard-won guarantees from right under our noses.

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