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Britain gets new human rights bill

What difference will it make?

by Nick De Marco

Jack Straw's announcement to finally incorporate the European Convention on Human Rights (ECHR) into British law and bring in a Human Rights Bill was cleverly timed. A week after the stunning attack on fundamental rights and access to the courts contained in the proposals to 'reform' (abolish) legal aid, and days before the home secretary declared a new clampdown on asylum seekers, reducing the period they are deported if some official thinks they are ('bogus' !) to 5 days, the human rights proposals was a huge sop to civil liberties campaigners. Most of them duly lapped it up. The head of Liberty, John Wadham was "absolutely delighted". Andrew Puddephatt of Charter 88 said, "For the first time in our history, ordinary people will be able to challenge abuses of their rights through the British courts. This bill tips the balance of power from politicians to people". What's the reality behind the spin and the hype?

There is no doubt that the proposals represent one of the most radical reforms to the constitution for hundreds of years. Britain has never had a written bill of rights, unlike nearly every other country in the world. It is far too early to predict exactly how judges and politicians will use the bill and what real effect it will have. But we are able to look at how powerful the rights will be in the light of numerous decisions made by the European Court of Human Rights over the past decades.

What rights are included?

The fundamental rights included are:

The rights are very vague with little indication of what they mean. None of them are absolute. All have clauses allowing governments to break them in the interests of 'national security', 'public order', combating crime etc. For instance, the right to respect for private life is supplemented with the clause:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Such clauses are so broad they could include virtually any infringement of human rights.

In the past Britain has been taken to the ECHR many times and there has been some important decisions to go against the government, like the recent decision that an unequal age of consent for gay men was discrimination. But a glance at some of the other decisions shows how toothless the rights can be, In 1985 the British government were taken to court for banning unions in GCHQ. The ban had never even been passed through Parliament, it was announced by Thatcher's cabinet. Despite seemingly contradicting the right to freedom of association the ECHR supported the UK government. On the other hand, in 1984, Mr Malone took the government to court for illegally tapping his phone. The court declared the government had breached his right to respect fro private correspondence, so Britain introduced a law allowing them to legally tap phones, and everything was OK. The government has also gained an exemption from rulings against it in relation to clear infringements of rights in Ireland. The Prevention of Terrorism Act, which allows the state to hold a suspect for 4 days without charge or access to lawyers is allowed by the ECHR.

Telephone tapping, union banning, arresting without charge or legal rights, all these flagrant infringements of human rights are allowed by the legislation Britain is bringing in. And even if judges decide a law is in breach of the convention on rights, it will still be allowed, there will just be political pressure on the government to amend it so as not to offend the courts.

Many leading British judges have said there is nothing in the convention on rights which doesn't already exist in UK common law. Top judge, Sir Stephen Sedley, has gone even further. He said the ECHR:

"is a full generation out of date. The Convention, devised in 1950, took a limited view of human rights, based on the nineteenth century paradigm of the individual whose enemy is the state."

We would be amongst the first to try and find ways to use the new rights to advance the cause of the oppressed and fight injustice. Its use to prevent police using certain evidence in criminal trials maybe very important. But Straw's human rights will make little real change to most of us. They will be no substitute for organising a political movement to fight for justice. And any idea that "ordinary people will be able to challenge abuses of their rights through the British courts" will be quickly dashed if the same Jack Straw takes away the legal aid you need to get into court in the first place!

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