The government parades it as an emblem of its own enlightenment. The Right sees it as yet another stick for criminals, asylum-seeking scroungers and their politically-correct allies to beat the liberal establishment with. How profoundly will the Human Rights Act change things in Britain, and more particularly, will it help the fight against racism?
The Act brings into British law the 1950 European Convention on Human Rights, which guarantees respect for basic rights – life, freedom from torture and from inhuman or degrading treatment and from slavery; liberty, fair trial procedures, respect for family and private life, home and correspondence, freedom of conscience, expression and assembly; rights to property, to education and to free elections; and the right not to be discriminated against in the enjoyment of any of the protected rights.
Although Britain signed the Convention 50 years ago, it has never until now been part of British law. If anyone wanted to claim that British authorities had violated their human rights, it meant appealing to the European Court of Human Rights in Strasbourg. From the 1960s, a steady stream of cases was brought. Irish Republicans claimed that British army interrogation techniques, including hooding, wall-standing, subjection to white noise and sleep deprivation, were inhuman and degrading. Their claims were upheld in one of the early cases. In another, Britain’s exclusion of citizens of Asian origin who were expelled from East Africa was held to be so blatantly racist as to constitute degrading treatment. When prisoners, people who had had homes trashed in searches, those detained under the Prevention of Terrorism acts or indefinitely incarcerated in mental hospitals, journalists penalised for publishing or for refusing to reveal sources, poll tax protesters and others won case after case, the inadequacy of British law for the protection of fundamental human rights was exposed.
Deaths in custody
Since 2 October 2000, anyone who complains that their human rights have been violated or threatened by a ‘public authority’ (which includes private bodies acting officially) can bring a case in the UK under the new Act. In the fight against racism, the Act’s main impact is likely to be in the treatment of people in detention – in prisons, police stations, immigration detention centres and mental hospitals – and in particular, the investigation of deaths and injuries in custody. This is because, under the Human Rights Convention, the state has primary responsibility for the welfare and safety of those in its custody. It must have measures in place to protect prisoners from known risks, whether from self-harm or harm from others; to investigate any death or injury in custody fully, and to allow families of those who die or are injured full participation in any inquiry. The government is under an obligation to bring those responsible to justice. These obligations mean that failure to prosecute police and prison officers, found by inquests to have unlawfully killed those in their custody, may lead to a finding of a violation of the victim or family’s human rights. They also mean that families should as a matter of course obtain legal aid for representation at inquests into a relative’s death, and should as a matter of course be entitled to full disclosure of all relevant evidence.
In fact, the Act has already had an impact in this area. In July, in recognition that it was about to come into force, the family of Christopher Alder were granted legal aid to be represented at the inquest into his death in Hull police station in 1998. A decision had already been taken to prosecute the officers involved for neglect of duty. In the same month, the High Court condemned the refusal by the DPP to prosecute the prison officers implicated by the unlawful killing verdict on the death of Alton Manning in Blakenhurst prison in 1995. The judges said that the refusal, without explanation to the family, breached their human rights.
Victims of violence
The state’s responsibility under the Convention to protect life and property could also offer a real opportunity to the victims of racist attacks and their families to hold the authorities accountable for a failure of protection. In the Osman case, in which a family complained about the failure of the police to prevent the killing of their son by an obsessed teacher, the European Court of Human Rights said that the right to life means not just the right not to be killed by the state but also the right to protection from killing by others. The authorities have a responsibility to avoid real and immediate risks to life which they know or ought to know about. Thus, a victim of repeated racist attacks, such as Lancaster shopkeeper Mal Hussein, would be able to bring an action against the police and the local authority alleging a failure to protect his home, his property and his life. The family of Robert Hamill, who was killed by a loyalist gang in Portadown in full view of an army patrol who took no action to intervene, would also have a strong case for arguing that the authorities’ failure to protect, or later to investigate or prosecute anyone for Robert’s death, violated the Human Rights Act. Police no longer have immunity from legal action. If it can be shown that the failure to protect was discriminatory – that police act faster and do more for white victims than for black, or loyalist than republican, for example – a breach of the anti-discrimination provision of the Act would also be established.
Asylum and deportation cases
The Act will also have an impact on the rights of asylum seekers and those facing deportation. Under the Convention, no-one can be sent back to a risk of torture or inhuman or degrading treatment. This should provide protection for those who currently don’t qualify to remain in the country as refugees – eg those seen as a threat to national security, or who fear the indiscriminate violence of war rather than the particular violence of persecution. Additionally, it will be unlawful under the Human Rights Act to send home AIDS sufferers and others with terminal or very serious illnesses if to do so would result in loss of medical treatment and condemn the sufferer to an early death, to misery and destitution. Equally, deportations that split families may be prevented if as a result the family cannot stay together – although the right to respect for family life is not absolute but may be set aside (the legal term is ‘interfered with’) on the grounds that it is ‘necessary in a democratic society’. A deportation which splits a family could be justified if the deportee has criminal convictions, or if he or she has a ‘bad’ immigration history.
Frightening the judges
These examples show that there are many loopholes for judges who don’t like the idea of human rights for asylum seekers, illegal immigrants and criminals (and for many judges, as for the Home Office, the three terms are often seen as synonymous). It’s in the field of immigration and asylum law that the judges already give the Home Office the greatest freedom – just as the judges of the European Human Rights court have traditionally done. Many judges appear haunted by the spectre of hordes of scrounging huddled criminal masses waiting to exploit every possibility offered them to pour into Britain. The House of Lords decided in the summer, in the teeth of the evidence, that Gypsies in Slovakia are adequately protected by the authorities from racist attack and cannot claim refugee status in Britain. And following the coming into force of the new Act, lawyers have told CARF they have noticed a perceptible defensiveness in judges called upon to stop deportations.
This defensive response is encouraged by the right-wing press and its political bedfellows in the Tory ranks. Within weeks of the Act’s introduction the first scare mongering headlines were appearing: ‘He has AIDS and convictions for drugs and violence. But the asylum seeker has a human right to be in Britain, says a judge. And we can’t even name him.’ This one took up one-third of a Daily Mail page on 25 October. A large photograph of the offending judge appeared below the headline. The headline had nearly all the ingredients for hysteria: crime, health scare, asylum seeking. The text of the story brought in the other ingredient calculated to deter liberal judges: taxpayers’ money, which was funding the man’s appeal. The Mail story also referred to the ‘Sikh terrorists who can’t be deported because they face torture in India’ in a throwaway comment which made torture sound like a mere inconvenience.
The right-wing line is that human rights are not really for everyone, only for a particular class of people who deserve them, and the others, the criminals, the scroungers, the asylum seekers, are taking the judges for a ride. And the danger is that judges will respond to this right-wing backlash, even try to pre-empt it, particularly in ‘sensitive’ areas involving institutional racism, such as policing and immigration, by rulings which defer to ministers’ or police assessments of which interferences with rights are ‘necessary in a democratic society’. We saw an example of this in the Court of Appeal’s ruling in July that Muslim priest Shafiq ur Rehman was a national security risk who ought to be deported, even though his support (if at all) was for liberation fighters in Kashmir. The court accepted wholesale the Home Secretary’s argument that anyone who threatened any friendly country’s security was a threat to the UK.
In cases where it is claimed that there has been discrimination in the enjoyment of a basic right (for example, the disproportionate use of stop-and-search against black men, or the exclusion of black children from school) the judges have to decide whether, if there has been discrimination, it has a reasonable and objective justification. The danger here is that by relying on suspect statistics or borrowing right-wing arguments about constitutional disorderliness or criminality, judges could find the institutional racism manifested by such practices justified. And that would give both the actions and the underlying racist arguments the seal of legal approval.
Hijacking human rights
If the combination of judicial conservatism and media scare mongering has the effect of undermining the usefulness of the Human Rights Act to those who need it most – victims of state racism – the real beneficiaries of the Act could be those who need it least. The human rights that the judges may be most willing to uphold are, perversely, the rights of corporations – to advertise tobacco products and to print gossip about celebrities, in accordance with rights to free speech; to receive compensation for irregular planning decisions, in accordance with their rights to enjoyment of property. If it seems bizarre that those most anti-human of creations, commercial corporations, can enjoy and enforce ‘human’ rights to enable them to make profit, while families can be split in the name of immigration control, that perversity is a clue to the struggle that lies ahead. Human rights are being hijacked – by the corporations demanding the right to print lies and broadcast pornography in the name of freedom; by the lawyers and judges who are assisting the divorce of human rights from human beings to turn them into subjects of litigation and specialist textbooks.
We must use the Human Rights Act for all it is worth – to try to get rid of the degrading voucher scheme which stigmatises asylum seekers; to demand proper investigations into racist attacks and deaths in custody, to insist on accountable police and prisons; to fight deportations. But we must not be under any illusions that the fight is going to be easy.