Date / time
Date(s) - 15/10/2014
6:30 pm - 8:00 pm
Shearman & Sterling LLP
The rights in the ECHR were designed as “Something for humankind to cling onto” says Sir Keir.
On 15 October 2014, Sir Keir Starmer QC delivered the Tom Sargant Memorial Lecture 2015 to a packed audience of JUSTICE members and friends.
Introducing Sir Keir, Baroness Helena Kennedy QC, Chair of the JUSTICE Council reminded the audience about the crucial role that Tom Sargant – our first “Director” (although he was styled Secretary) – in building the foundations of JUSTICE. “A very special man”, he had worked tirelessly to help individual victims
of miscarriages of justice and secured or contributed to the release of many unfairly treated by our criminal justice system.
The topic of Sir Keir’s lecture was particularly timely. Delivered days after the commitment of one of the main UK political parties to the repeal of the Human Rights Act 1998 and to unilaterally renegotiate the obligations of the UK under the European Convention on Human Rights; the question “how high are the stakes?” could not be more apt.
Surveying the history of the Convention, Sir Keir recalls the settlement of the rights in the Convention in the post-war environment:
“Despite its name the European Convention on Human Rights is not some suspect foreign import. It was drawn from the Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10 December 1948. With the end of the Second World War and the creation of the United Nations, the international community vowed never again to allow atrocities like those of that conflict to happen again. World leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere. Hence the Universal Declaration of Human Rights, which, when adopted, was proclaimed as a “common standard of achievement for all peoples and all nations”.
The rights in the ECHR are accordingly very simple […] A simple set of minimum standards of decency for humankind to cling onto going forward.”
He considers in detail three arguments for repeal of the Human Rights Act 1998 and finds each wanting.
First, critics argue that our courts are bound to follow the decisions of the European Court of Human Rights. This is simply inaccurate: “Judges are not bound to follow the Strasbourg court: they must decide the case for themselves”.
Second, “but for the HRA, the executive could act with unfettered discretion when removing foreigners from the UK.” This argument is disingenuous. The UK is bound by several other international instruments which would bar deportation to torture, not least in UNCAT, which was signed by Mrs Thatcher:
“unless it be suggested that Ministers should be able to act untrammeled by the ICCPR principles, then it too – alongside UNCAT and UNCRC – operates so as to constrain the actions of the Executive insofar as it seeks to make decisions that impact on the human rights of individuals within the jurisdiction.
The only other alternative is the prospect of the UK being in constant breach of fundamental UN human rights obligations. That is both unedifying and fundamentally at odds with the frequent FCO declaration that “Human rights, democracy and the rule of law are at the heart of the government’s foreign policy”. There must be a high level of concern at the FCO when government ministers ritually denounce the ECHR while instructing the rest of the world, including other European states, to respect ‘the rule of law’ and collective international human rights obligations.”
Third, “the HRA is no more than a villains’ charter abused in ‘trivial’ cases by undeserving individuals”. In this, Sir Keir, as former DPP, drew on his particular knowledge of the benefits which the HRA 1998 has brought for victims of crime:
“There has been no fundamental shift in defendants’ rights and most of the HRA challenges brought by defendants in our courts have failed. Those that have been successful have usually involved issues that many would regard as fundamental to our justice system such as overturning indefinite detention of foreign terror suspects without charge or trial and the ending of the automatic removal of toddlers from their mothers in prison. […]
By way of stark contrast – and this is a baby and bath water point – the HRA has heralded a new approach to victims’ rights. Before the HRA, individuals in the UK did not have the right to an effective investigation into serious allegations of criminal wrong doing. Even where the police clearly and obviously failed to protect victims or to investigate properly, the common law offered nothing. The ‘positive obligation’ to protect life and limb found in the HRA changed all that. Often after many years of struggling to be heard, victims now have a right to have serious allegations taken seriously and to be protected and supported by the police whether they have died in the hands of the state or have been abused by other individuals.. Child victims of trafficking, women subjected to sexual violence prisoners who have died in custody, and those with vulnerabilities that inhibit reporting of abuse have all benefitted from this fundamental change in emphasis.”
JUSTICE shares Sir Keir’s concerns both that the Conservative party proposals for reform would undermine the ability of us all to vindicate our rights within the domestic justice system and that the proposals would endanger the UK’s commitment to the international rule of law. We will continue to work during this year to help highlight the clear risks associated with high stakes reform, in our work with members and friends of all political persuasions and none.
Download the full text of Sir Keir’s lecture