Martin Sewell: The human rights problem lies with legal culture rather than legislation

Martin Sewell is a family Solicitor from Kent. He is also an Anglican Reader.

Graeme Archer was absolutely right when he identified in Saturday’s Daily Telegraph that the Left is much better than the Right at paying heed to the importance of defining the terms of a political debate before it truly gets started. 

Their success in reducing an entire policy of rationalisation, avoiding waste and ensuring the efficient spending of Government money to the single vituperative word ”Cuts” is but the latest example of what Graeme identifies. The other obvious example was when the Community Charge was successfully rebranded as “The Poll Tax”. Both entered the political currency, and defined the terms of the discussion, not least through being taken up by every commentator on the BBC. Who says the intelligensia don’t like tabloid journalism?

It was partly with this in mind that my last piece on Con Home identified those who were brought up under the Liberal consensus, and whose attitudes were manifested in the recent street riots, as “Generation Toynbee”. It was intended to be a snappy identification of cause and consequence. Why should the devil have all the best tag lines?

In his article, Graeme identifies the difficulty that Conservatives have in addressing the issue of “Human Rights”; he rightly identifies that it is a term which, once applied, somehow imbues the most unattractive of behaviours with the status formerly attached only to Holy Writ. My teacher wife once returned from school telling me of an 8 year old girl who had been sent home by reason of her inappropriate dress who returned next day, similarly attired as jail-bait, asserting that her mother insisted it was her “Human Right” to dress as she pleased. Here, Graeme’s linguistic disquiet and my worry over “Generation Toynbee” seem to meet seamlessly.

Yet there is a simple and important concept within the Human Rights pantheon which, once identified and brought into play on every occasion will make the tethering of that unruly beast much easier.

That single word is “Proportionality”.

There are some Human Rights which are termed “Absolute”, notably the right to a fair trial and the right not to be tortured. They are intended to be plain, unambiguous and incapable of nuance. However, most Rights under the Convention are of more malleable status and recognised as “qualified”. Thus the website of our own Equality and Human Rights Commission sets out very clearly on its website:

“...most human rights are not absolute. Some of these rights can be limited in certain circumstances, as set out in the specified Article of the European Convention on Human Rights.”

The “Right to Liberty” can thus be limited by fair (and proportionate) imprisonment of a properly convicted wrongdoer, and an abusive parent can have his or her “Right to family life” curtailed. These are not terribly controversial propositions, though as ever, the devil is in the detail.

If Proportionality is made the cornerstone of all discussion of Human Rights, we ought not to go far wrong, but there is a secondary aspect that assists, although it is not quite as catchy in its title.

Under the doctrine of the “Margin of Appreciation”, any Court adjudicating on Human Rights issues must have some regard to the cultural context of the Member State. As the Council of Europe website explains:

“...Consequently, the process of realising a “uniform standard” of human rights, protection must be gradual because the entire legal framework rests on the fragile foundations of the consent of the Member States.”

Or as Elvis Presley might have sung “Don’t step on my margin of appreciation”!

Family life may be considered differently in Greece than in the Netherlands; standards of perceived propriety or outrage may vary between Portugal and Denmark.

It is here that I could differ from Graeme and others in the Conservative movement over the value of a uniquely British Human Rights Act - which would, under present Law, still have to be consistent with principles of the current Treaty obligations. 

It really is not going to greatly assist the remedy of some of the more glaring problems of the Human Rights Act, if the Rights are re-cast, but an entire generation of Judges brought up in the current liberal legal climate continue to interpret the new legislation in accordance with the attitudes and mindsets that have shaped their exercise of discretion hitherto.

There is a School of Jurisprudence known as the American Realists who suggest that if you want to know what the Law is, don’t study the texts - study the Judges. If they are in tune with values of the mainstream society there will be confidence in the legal process, but if not, an important and necessary pillar of our Constitution will be undermined. This may partly be where we are in such difficulty today.

I offer two interesting and contrasting examples from the recent past.

We recently had a furore when the Courts refused to deport a criminal who had a child in the UK. The rationale was that the penalty would interfere with his “Right to Family Life”.

The problem here lay not with the legislation per se, but rather the exercise of the Judicial discretion. The Judge could easily, proportionately, and within the margin of appreciation have adapted an old Principle of Equity that “He who comes to Equity (i.e. looking for a sympathetic exercise of discretion) must come with clean hands”. This would have been a simple and elegant way of expressing the public mood that the malefactor should have thought of the child first before putting his request for a stay at risk.

Alternatively, the Judge might have remembered that every week, mothers make application to the Courts to permit them to remove children from the Jurisdiction, and so enable them to take up employment abroad or in some other way to “fulfill” themselves, and the Courts currently seem to take approval as their starting point notwithstanding the compromising of the fathers’ “Article 8 Right to Family Life”. To up-hold the family life of the illegal immigrant criminal whilst routinely disrupting that of ordinary citizen fathers is a product of poor cultural judgement, not law.

In contrast, we have seen Judges resisting the notion that those who offended during the recent riots, should be sentenced no differently from “everyday offenders”. They have proved highly responsive to the public mood and understood that rioters are part of a much wider concerted and massively damaging enterprise that deserves both greater punishment together with a deterrent message.

In this instance, “Proportionality” and an “appreciation” of local context won. Judges used their Judicial discretion in accordance with the public mood and circumstances, whilst not doing violence to the notion of Judicial integrity. They were proportionate. 

Judicial discretion has been likened to the hole in a doughnut. It cannot entirely redefine itself but there is a fair degree of stretching and re-shaping possible within a confined area. Good Judges like the Late Lord Denning, constantly found ways of shaping the Law without doing violence to Justice because they rooted themselves in the twin virtues of the Common Law and Common Sense - both unashamedly tethered to English/Welsh cultural values.

If we insist on the proportionality of such values as we address the problems of the Human Rights Act we shall not go far wrong and may be more effective in shifting the debate in the right direction.

If I am right in identifying the problem as one of legal culture rather than Legislation, then the remedy will need to centre on a wider and more diffuse set of solutions. I suspect that the current higher echelons of the Legal Establishment - and those appointing the next generation of Judges - perceive themselves in tune with society as expressed through their liberal metropolitan associations. If we do not successfully challenge that interpretation of the Zeitgeist, no re-drawing of the text of Human Rights legislation will matter a jot.