‘everyone’ (the most important word in the ECHR?) #echr

Readers of this blog may be interested in this post by Natasa Mavronicola (on The Human Rights Essay site).

Amongst other things, Natasa notes that the campaigners for the HRA have directed their attention to getting popular support for the Act, by employing certain examples of its application. The examples used have been (generally speaking):

on the basis of largely law-abiding, relateable-to-the-average-voter UK citizens benefiting from [the HRA] (and standing to lose from its repeal)

Otherwise the strategy of defenders of the HRA has been to:

explain that the Strasbourg Court does not in fact have decisive say over UK domestic law and policy under the Human Rights Act, [or the defenders] … downplay the substantive reach of some of the most unpopular of the Strasbourg Court’s judgments

Natasa points out that these strategies therefore:

fail to defend human rights at their most controversial – and, indeed, their most essential: in protecting the unpopular, the marginalised, the otherwise politically, legally and/or socially disenfranchised. That is the essence of the human in human rights, and it is what we may well stand to lose here in the UK.

She concludes, that the:

challenge therefore is to touch the public’s human conscience in a way which captures the unconditional essence of human rights: that they prohibit wrongs which strike at our mutual humanity, and that they pertain to us simply as human beings and not as responsible British citizens or a variation thereof.

As a response to that challenge I have in mind what Lord Hope said in the Abu Qatada case, when it was heard by the House of Lords in 2009, and so I quote from his judgment in that case below (the case, it will be recalled concerned whether Abu Qatada could be deported from the UK to Jordan – it was subsequently litigated at the Strasbourg Court, and proved immensely controversial over 2012-2013, as well as before and beyond).

Lord Hope stated:

208. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens [i.e. ‘Abu Qatada and others] to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens’ removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.

209. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone”. The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law – even those who would seek to destroy it – are in the same position as everyone else.

210. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens’ beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.

This is the most powerful statement that I am aware of (in the UK judicial context at least) in defence of human rights, and in terms of such rights applying to ‘everyone’.

(Of course, the question then arises as to what substantive form or content those human rights should take on the facts of any one case, dependent on the context in issue).



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