Wednesday, August 22, 2007

Human Rights

This is a pro-Cameron blog, I don't think anyone can have any doubt about that. But I'm afraid that he's dropped a rather serious brick. There's been a bit of coverage of the entire issue of human rights, both specifically in this instance and more generally. Calling for the scrapping of the Human Rights Act, and its replacement with a new 'Bill of Rights' is entirely defensible, as I shall argue below, but to do so in relation to the furore over Learco Chindamo is fatuous. I find it hard to believe that someone hasn't told Cameron what the issue is with Chindamo, especially as it is so bloody straightforward.
European law says that we may not deport a European citizen unless that person is a clear threat to the public security of this country. There's a ton of litigation on this, and the definitions are narrow - the threat must be definable and serious. Chindamo was sent to prison for 12 years before the possibility of parole. But it was a life sentence - in theory he could remain in prison more or less indefinitely if the parole board do not believe it safe to release him. Therefore, if they do release him, it is because they believe that he doesn't pose a threat to society. If he doesn't pose a threat to society, he can't be deported. It really is very simple.
This isn't about a 'right to a family life' as enshrined in the HRA, it isn't about Mrs Lawrence's human rights, it's an old-fashioned bit of treaty law. To respond to such a straightforward piece of law with bluster about an unrelated law is just silly - it makes it look as though the Tories haven't bothered to do their homework and have reverted to a Colonel Bufton auto-rant about the Human Rights Act.
There is a good and coherent case for a rewriting of the Human Rights Act, as I have argued before. The Human Rights Act is based on a Continental Code system of laws. The role it makes judges play is akin to the German or French constitutional courts - where judges examine laws for their inherent constitutional legality. England's Common law system has a critical difference. The Legislature passes the laws, and the courts interpret them - they do not pass judgement on their quality or legality. The argument that the HRA is merely an adaption of the ECHR is, in fact, proof of this problem. It is a European concept artificially grafted onto a Common law system - and it hasn't taken.
I'm not a constitutional expert, and the task of redrafting the HRA to fit the traditions and customs of the English (I say English as I know even less about Scottish law) legal system will not be an easy one. However, a redefinition of the roles of judges and politicians is essential. To make the judiciary in charge of legislation is dangerous. It risks taking whole areas of law and policy out of the democratic sphere altogether - as can be seen by the US debate on abortion. To do so without the protection even of a written constitution is ludicrous. Continental and US judges argue their cases on the basis of written constitutions - there is a concrete basis for their decisions, no matter how tenuous it may sometimes appear. Without such a basis, UK judges are effectively determining the legislation of this country on the basis of their experience and prejudices. It's not a job they're trained for, and it's not consistent with our unwritten constitution.
There, that's a reasonable argument in favour of a reappraisal of the HRA. But to churn this up on the basis of either a misunderstanding or a misrepresentation of the Chindamo case is foolish at best. At worst it's dishonest.

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