The problem with human rights …

Photo by Samantha Sophia on Unsplash

It was perhaps appropriate this week that I began a number of lectures about human rights in Scotland. You might ask: why this is appropriate? Well, on Sunday 27 January 2019, we had the annual Holocaust Memorial Day. This important date commemorates the liberation of Auschwitz on 27 January 1945, the Nazi extermination camp, by the armed forces of the former Soviet Union (the Red Army).

It was at this point and with the final defeat of Nazi Germany in May 1945,that the real horrors of Hitler’s regime were fully exposed throughout Europe and the rest of the world.

The anniversary was especially important this week when several British media outlets (the BBC and The Guardian) highlighted a poll conducted on behalf of the Holocaust Memorial Day Trust* which revealed that 1 in 20 British people did not believe that the Holocaust had actually taken place; 8% of adults questioned believed that the extent of the killings had been exaggerated; and over 50% of respondents could not provide the correct figure for the number of Jews killed by the Nazis (6 million in case you didn’t know). As Harriet Sherwood in The Guardian pointed out: the findings of this research closely “echoes the findings of a survey** carried out in seven European countries in November [2018] (“One in 20 Britons does not believe that the Holocaust took place, poll finds” by Harriet Sherwood writing in The Guardian on 27 January 2019)

* The Holocaust Memorial Trust:

https://www.hmd.org.uk/news/we-release-research-to-mark-holocaust-memorial-day-2019/

** CNN (2018) A Shadow over Europe:

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

From 1945 onwards, particularly amongst Western European nations and the USA and Canada, there was a renewed emphasis about protecting basic human rights and democratic freedoms. The Superpower standoff (‘The Cold War’) between the USA and the USSR was also portrayed (in the West anyway) about a greater struggle to protect freedom and democracy. The United Nations’ Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) demonstrated a renewed desire on the part of the international community to protect human rights.

The UK, Scotland and Human Rights

Human rights legislation is now a major source of law in Scotland and the UK. In 1999, the Scotland Act 1998 came into force and the new Scottish Parliament was obligated to pass laws which complied with international human rights standards. A year later, in October 2000, the Human Rights Act 1998 came into operation further reinforcing the United Kingdom’s commitment to the protection of human rights.

In 1950, the UK became one of the first signatories to the European Convention on Human Rights, but it chose not to implement this Treaty directly into UK domestic legislation. The Westminster Parliament could have passed an Act to enshrine human rights protection at the heart of the British constitutional and legal framework, but chose not to do this. It was not until the election of the Labour Government of Tony Blair in May 1997, that there was a clear commitment to pass legislation in this regard.

This meant that, for the first time, ordinary people could enforce the European Convention in the courts of the United Kingdom against the British State and its institutions. Prior to the Scotland Act 1998 and the Human Rights Act 1998, people in the United Kingdom had to go the European Court of Human Rights (based in the French City of Strasbourg) if they wanted to enforce their human rights.

Since 1966, the UK had accepted the compulsory jurisdiction of the European Court of Human Rights, but individuals who used the services of this Court could often expect to wait for 5 years (on average) to have their cases heard and determined. The Government of Prime Minister Tony Blair equated the direct implementation of aspects of the European Convention into domestic law as an example of bringing human rights home.

In Scotland, we’re approaching the twentieth anniversary of the European Convention becoming part of Scots Law and we often take things for granted.

 Why are human rights so problematic?

Controversy No 1

Should human rights be universal i.e. should everyone benefit from them?

I often pose the following scenario to students:

What if Adolf Hitler had been captured by the Russians when Berlin fell in 1945, do you think he should have been put on trial like the other top Nazis at Nuremberg?

Did Hitler have a right to a fair trial?

I remember reading Professor Richard Overy’s superb book “Interrogations: the Nazi Elite in Allied Hands, 1945” (Allen Lane: 2000), which highlighted the disagreement between the Allied Powers about how best to deal with Nazi war criminals. The then UK Prime Minister, Winston Churchill would have summarily executed captured Nazi leaders (and lower ranking functionaries) arguing that the law of the outlaw should prevail (or at the very least Parliament would pass an act of Attainder). These individuals, by behaving atrociously towards their fellow human beings, had given up any claim to civilised treatment themselves. Franklin D Roosevelt, the then US President and Josef Stalin, then Chairman of the Communist Party of the USSR argued successfully for the creation of an international judicial tribunal to prosecute those accused of war crimes.

In this respect, the Nuremberg War Crimes Tribunal (as it became popularly known) was the forerunner of the modern International Criminal Court.

Something else that is worthy of consideration: in 1961-62, the State of Israel put Adolf Eichmann, one of the principal architects of the Holocaust, on trial for crimes against humanity.

Many of the first citizens of the State of Israel were Holocaust survivors or had family members who perished at the hands of the Nazis.

Yet … the Israelis still felt it was important to put this man on trial publicly so that the whole world would learn about the true extent of the evil nature of Hitler’s Third Reich.

Eichmann was captured by Mossad agents (the Israeli Foreign Intelligence Service) in Argentina (where he had fled, by way of Austria, after the Second World War) and he was taken back to Israel to face trial.

It might be argued that it would have been easier and more convenient for Mossad to assassinate Eichmann in Argentina or simply make him ‘disappear’

Do “monsters” have human rights? Hannah Arendt, the German Jewish Political Theorist, referred to Eichmann not as a “monster” but as someone who represented the “banality of evil” (Eichmann in Jerusalem: A Report on the Banality of Evil published by Viking, 1963)).

Some footage of the Eichamann Trial from Youtube can be viewed by accessing the following link:

http://www.bing.com/videos/search?q=adolf+eichmann&FORM=HDRSC3#view=detail&mid=AAFFED8CDB8ED628A674AAFFED8CDB8ED628A674

Even to this day, the controversy of who should benefit from human rights persists: many of the cases dealing with alleged human rights abuses involve murderers, paedophiles, terrorists and rapists.

  • Should the law whereby prisoners serving sentences in UK jails forfeit the right to vote in British elections be abolished? (see Hirst v United Kingdom (No. 2) (2005) ECHR 681).
  • Should a murderer who dismembered his victim have the right to complain about the prison authorities opening his private correspondence with his legal advisers? (see Beggs v The Scottish Ministers [2007] UKHL 3)
  • Should prisoners have the right to claim damages from the Scottish Government for failure to provide modern and hygienic toilet facilities? (see Napier v The Scottish Ministers [2005] CSIH16)
  • Should a radical Islamic preacher promoting or condoning Jihad be deported from the UK on the basis of information obtained from terrorist suspects who were tortured? (see Othman (Abu Qatada) v UK (Application No. 8139/09) 12 January 2012)
  • Should a mass murderer responsible for the deaths of over 70 people in Norway be entitled to complain about the inhumane and degrading conditions of his solitary confinement? (see Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

Opponents of the European Convention will, of course, highlight cases such as the above to attack the principle that human rights should and must have universal application.  Why should individuals who threaten the safety and security of the community benefit from the protection of human rights? In 2010, the journalist, Andrew Neill (on The Daily Politics Show) famously challenged John Hirst that he had shown no respect whatsoever for the human rights of the woman that he killed:

https://youtu.be/vjBEcLvPTAA

Supporters of human rights, on the other hand, will have to grit their teeth and argue that decent treatment of individuals such as William Beggs (the “limbs in the loch” murderer) and the Norwegian mass murderer, formerly known as Anders Breivik can and should be justified. They will make the argument that civilised treatment of vile individuals is a guarantee that those of us who are good and decent members of society will also be treated fairly by the State and its agents.

Controversy No 2

Another area which is often a source of discord in relation to the protection of human rights is that there is no universal definition of human rights.

Over the years, issues such as abortion, abolition of corporal punishment for children, access to IVF, euthanasia and same sex marriage have sharply divided opinion.

Advocates of greater abortion rights in Northern Ireland have, for example, argued (only partially successfully) that the Province’s more restrictive Abortion laws are a breach of human rights (see In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland)[2018] UKSC 27).

This is not the end of the debate about Northern Ireland’s abortion law as the following BBC illustrates:

Abortion law: Abortion due to disability ‘prohibited’

Sarah Ewart is trying to change the law with a case based on her personal experience of abortion.

A question of balance?

Determining whether a person’s human rights have been breached can also involve a delicate balancing act as two judgements before the UK Supreme Court this week (week beginning 28 January 2019) have demonstrated:

Case 1

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents) [2019] UKSC 3

Persons convicted of relatively minor criminal offences e.g. not wearing a seatbelt; committing a minor assault; stealing a sandwich; or stealing a book priced 99p should not have to declare these convictions to prospective employers and thus adversely affect their future employment. The current requirement in law for disclosure of relatively minor convictions was a breach of Article 8 of the European Convention on Human Rights (right to a private and family life). 

Case 2 

R (on the application of Hallam) v Secretary of State for Justice R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2

Hallam and Nealon had been imprisoned (wrongly as it turned out) for 7 and 17 years respectively. Their convictions were quashed (set aside) by the English Court of Appeal. They both sought to claim compensation for wrongful imprisonment. They were refused compensation by the UK Secretary State of Justice who had made the decision (in terms of Section 133 of the Criminal Justice Act 1988) that the new evidence which had led to their release from prison did not demonstrate beyond reasonable doubt that they had not committed the offences. The new evidence made the men’s convictions merely unsafe. The UK Supreme Court by a majority of 5 to 2 decided that the failure of the Justice Secretary to grant compensation in terms of Section 133 of the Act did not breach the presumption of innocence in terms of Article 6 of the European Convention (the right to a fair trial). 

In a third case this week, the European Court of Human Rights stated that there was no breach of Article 8 of the European Convention in respect of a man who was being compelled to take a paternity test. His right to a private life had to be weighed against the rights of the other party who wished to clarify her family origins (see Mifsud v Malta 29 January 2019 (Application No. 62257/15)).

Controversy No. 3

Another bone of contention for opponents of human rights legislation is that it can give too much discretion to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention which have been implemented by the UK. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics (see R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5).

When viewing this argument through the prism of Westminster legislation it soon becomes apparent that this is factually incorrect because all that superior court judges can do is to issue a declaration of incompatibility if a particular law or legal provision is found not to comply with the Human Rights Act 1998. The declaration of incompatibility is like a football referee issuing a yellow card: foul play is being acknowledged, but the player remains on the field … for now. It will then be over to the Westminster Parliament (as the highest legal authority in the land) to bring in corrective measures to ensure that the law is changed, but this is Parliament’s decision alone: take note prisoners in UK jails who are still waiting to be given the vote – despite the decision in Hirst v United Kingdom (No 2) (2005) ECHR 681.

The Guardian newspaper did report (in December 2017) that the UK Government had reached a compromise with the Council of Europe which would allow a small number of prisoners to vote:

https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights

Hardly, the resounding victory that John Hirst would have hoped for.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Scottish Parliamentary Legislation

Admittedly, things are rather different with Scottish Parliamentary legislation which fails to comply with either the Scotland Act 1998 or the Human Rights Act 1998. As a legislature, which derives its authority from Westminster, all Scottish laws must usually be compliant with human rights. This is true for all legislative acts of the devolved institutions throughout the UK. 

In 2016, the Scottish Government experienced an embarrassing defeat in the UK Supreme Court when parts of its flagship Named Person scheme was found to breach Article 8 of the European Convention on Human Rights (Right to a privateand family life)(see The Christian Institute and others The Lord Advocate [2016] UKSC 51). The Named Person scheme had been introduced as part of the the Children and Young People (Scotland) Act 2014. After the UK Supreme Court’s decision, the scheme could not proceed as originally intended by the Scottish Government. 

Conclusion

Human rights are undoubtedly problematic for the reasons discussed. As a colleague of mine said: “When emotion comes into the debate it is very difficult to arrive at a balanced judgement.” Yet if we deny that human rights are universal i.e. that only certain people deserve them, are we not on the slippery moral slope?

It is worth recalling that Nazi Germany’s call for a boycott of Jewish owned businesses, the Law for the Restoration of the Professional Civil Service of 1933 and the Nuremberg Decrees of 1935 was a clear statement of intent that some people in Germany (the Jews) were less equal than others. The Jewish community in Germany was gradually marginalised and disenfranchised as a result of these measures.

As Pastor Martin Niemöller*, a prominent opponent of the Nazis wrote:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

*Gerlach, Wolfgang – And the Witnesses were Silent: The Confessing Church and the Jews . Lincoln, Nebraska: University of Nebraska Press, 2000, p. 47.

These words might be worth remembering in this week of Holocaust Memorial Day 

We might also pause for a moment to look around the world and recognise the fact that we in the West enjoy rights that others can dream about:

‘Why I fled Saudi Arabia and sought asylum in the UK’

Two Saudis who sought asylum in the UK explain why they risked everything.

Saudi woman’s refugee campaign sparks online debate

After Rafah al-Qunun fled Saudi Arabia she turned to social media to campaign for asylum

Five things Saudi women still can’t do

So Saudi women can now drive and watch football, but as Megha Mohan reports, some things are still off limits.

Copyright Seán J Crossan, February 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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