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Friday, October 23, 2009

The Oz, human rights horror stories from the UK, and some exploded myths for good measure.

UK DPP Keir Starmer QC- read on.

Chris Merritt in The Australian today returns to a familiar theme for the paper- the horrors that await us if the Federal Government goes ahead with a Human Rights Charter . This time its about the perils particularly for those of religious belief, based on the views of a British barrister, Paul Diamond, heading our way to join, among others that font of wisdom on the subject, former NSW Premier Bob Carr, at a " public meeting on the dangers of a charter of rights" in Sydney next week.

While acknowledging "(t)here are substantial differences between Britain's Human Rights Act and the scheme that has been drawn up for this country by Frank Brennan's committee," Merritt says, to justify telling us how bad things are in the UK, that " there are enough similarities to ensure Diamond's grim assessment of the British experience might cause some charter supporters to reconsider."

Diamond's "grim assessment" , according to Merritt, arises from involvement with clients who "are religious people whose beliefs, he says, have come under attack because of Britain's charter: an airport worker who refused to stop wearing a crucifix, a teacher who was dismissed when she objected to the promotion of a homosexual lifestyle to children, a nurse who was suspended for offering to pray for a patient."

Shocking isn't it? But a pity also that readers of the Oz and those attending the meeting probably won't hear about the speech yesterday in London by another UK barrister the Director of Public Prosecutions, Keir Starmer QC, one of many I expect who has rather different views. An extract follows- have a look at the myths towards the end.

"A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.

Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.

Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.

  • Everyone's right to life shall be protected by law.
  • No one shall be subjected to torture or degrading treatment or punishment.
  • No one shall be held in slavery.
  • Everyone has the right to liberty and security of person.
  • Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
  • No one should be held guilty retrospectively of a criminal offence.
  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • Everyone has the right to freedom of thought, conscience and religion.
  • Everyone has the right to freedom of expression.
  • Everyone has the right to freedom of peaceful assembly and to freedom of association.
  • Men and women have the right to marry.

And Article 14:

  • The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.

For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.

I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.

The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.

Let me pause there simply to guard against complacency: everyone of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice; and discrimination to which they are subjected.

If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.

And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence."

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many."

Good advice for those in the UK, and here as well.

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