Then it becomes a question of who decides what ‘necessary’ and ‘proportionate’.

In the end, the courts. But it would be nice if we could challenge proposals before they are deployed. I cannot see, for example, how the national identity scheme does not violate the Convention. I’m not sure how that would work though.

As for secondary legislation, or statutory instruments, I think far too many are used nowadays. We seem to be getting more ‘enabling’ legislation… too much of it.

Also: “Government may not do things that it has not been explicitly granted the power to do by Parliament.”

How does legislative sub-delegation fit into this, when parliament grants the government the right to re-write in part or in whole a law it has passed? It is how a lot of government action happens these days and to reject sub-delegation would be a radical, but I might well be in favour of it.

Government may not do things that it has not been explicitly granted the power to do by Parliament.

Government may not interfere with us unjustly, regardless of Parliament.

An interference is not just if it is merely lawful, it must also be necessary and proportionate.

I agree. This is therefore a problem with a rights-based approach, and one which I think has contributed to much of the confusion. We have read people on this thread saying that you have these rights because you are a human being, when they mean you have these rights because you are a human being who has not been convicted of a crime.

But wait a minute, when we refer to the no torture clause, we DO mean that you have the right because you are a human being. We don’t want even criminals being tortured, do we? It’s very unclear isn’t it?

I think a liberties-based approach avoids this confusion. ie Government may not torture, nobody may be deprived of his liberty…etc.

Yes, we are allowed. Freedom of movement is not an absolute right (I can’t trespass on your property for instance) so there are certain caveats, one of which is that the state is entitled to restrict people’s freedom if they are a danger to the rest of society (subject to a fair trial, due process etc). Obviously such caveats should be kept to the minimum and subject to proper debate but the key thing is that whatever our concept of the right of freedom of movement it is applied to everyone equally.

That isn’t the same thing as saying that human rights should be contingent on individuals carrying out their “duties” – let alone Dominic Grieve’s formulation of only handing out rights to the “deserving”.

Agreed – that’s what I was getting at, I just didn’t word it as well as I could have done.

Of course human rights should be conditional – on other human rights. All human rights charters have hierarchies.

Please cite.

Surely the interdependent duty we have to each other is the fundamental underpinning of a civilised society (that is a world away from any duties we might “owe” to the state)? Surely the idea that you have a duty to help out your fellow human is the basis of pretty much any ethical system you care to mention?

No. Wot Bishop Hill said.

In terms of ‘civil liberties’, what we have, or should have, at the most fundamental level, is an inalienable freedom from unlawful interference. And for any interference to be lawful, it must be necessary and proportionate, not merely an interference made lawful by legislation.

This covers everything: freedom of expression, freedom of assembly, freedom of movement, freedom from detention, freedom of conscience etc. Freedom in general – our liberty.

The only ‘duties’ that I’m inclined to agree with are Thomas Paine’s: “When we speak of right we ought always to unite with it the idea of duties: rights become duties by reciprocity. The right which I enjoy becomes my duty to guarantee it to another, and he to me; and those who violate the duty justly incur a forfeiture of the right. … He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

That is, as I exercise my freedom of speech, I shouldn’t interfere with the freedom of speech of others. If I don’t want to be imprisoned without a fair trial, I should be prepared to grant a fair trial to others. What ‘the public’ doesn’t tend to initially appreciate when ‘considering’ this stuff are such principles. They think instead that they should have the freedom to say what they will but other people shouldn’t, because they are right and others are wrong. What need of a trial if police or Home Secretaries say someone is guilty? Why should consenting adults be allowed to do the things in private that I disapprove of, even as I engage in things that others may disapprove of?

It has seemed necessary to write our ‘rights’ down because all sorts of people, governments, organisations, societies, neighbours, and criminals, keep on interfering with our freedoms. We need to be able to challenge interferences and seek redress from those who interfere. It is interesting to read about the formulation of the Bill of Rights in this sense because some people opposed it on the grounds that writing them down would limit their rights to what was written down and no-one had been granted the power interfere with rights in the first place. Alexander Hamilton: “I… affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

Whether we deserve our rights or not shouldn’t come into it. You begin from the wrong position. The burden is, or should be, on you to prove why your interference with my freedom is lawful, necessary and proportionate.

Labour will not improve our fundamental or natural rights – those freedoms that I outlined above. They want to introduce ‘declaratory’ or ‘aspirational’ rights and responsibilities – there will be no new justiciable rights – and guff about so-called ‘third generation’ rights (socio-economic rights). In this sense I’m not interested in the right to, for example, an adequate standard of living, a third generation right, particularly if I as an individual will not be allowed to enforce it, and in any case politicians should already be fighting for an ‘adequate standard of living’ (to a certain extent).

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

This also permits the imprisonment of anyone diagnosed with AIDS or any other STD or, I suppose, the common cold. Sneeze and find yourself in jail.

No-one’s going to be locked up for having a common cold. Look, any inteference with our rights must be “necessary” and “proportionate”.

James,

It is a matter of record that Labour have explicitly stated that their plans for a British Bill of Rights would build on the HRA, not replace it – while the Tories want to scrap the HRA and replace it with something “other.” That may sound minor, but it is a real distinction. And the number of people on the Labour benches prepared to defend the HRA outnumber the number on the Tory benches by literally 100-1. I’m not claiming that is everything, but it is something.

Let’s wait for the draft legislation. Labour haven’t actually given any detail yet (nor have the Tories, to be fair). The Joint Committee on Human Rights said that “we regret that there is not greater clarity in the Government’s reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights. A number of the Government’s reasons appear to be concerned with correcting public misperceptions about the current regime of human rights protection, under the HRA. We do not think that this is in itself a good reason for adopting a Bill of Rights” .

As for the notion of Labour being prepared to “defend the HRA”… Jebus. Look at the proposals over the last eleven years. Look at who has voted for them and who has voted against them. Yes, Labour will defend one piece of legislation… that they have attempted to undermine, along with the rule of law and other traditional notions of liberty, at every available opportunity with dog knows how many other pieces of legislation. Labour is not a friend to liberty. There are about 20-30 Labour MPs (Dismore is one of them, so I’d be careful about getting rid of him) who seem to appreciate liberty. The rest can go hang (without trial).

Do I think Labour have a poor track record on civil liberties and human rights? Darn right I do! The point I am making however is that the alternative the Tories are offering would be far worse.

Let’s not forget that the Tories were in favour of ID cards before they were against them. What changed? Davis convinced Howard of opposing them on tactical and cost grounds. However imperfect Davis may be, there is now no-one on the Tory front bench prepared to even talk the talk on civil liberties.

I have to disagree. Hansard shows why. (as for ID cards, I’m not sure what Howard was on but the Tories kept voting against them.)

I think there are distinctions to be made between the approaches of LibDems and Tories to Labour’s proposals. LibDems are consistently unequivocal in opposition (they have just one black mark, I think, relating to RIPA). Tories give the impression of playing along with the initial proposals but object to the details where they involve getting rid of juries, giving the executive judicial and legislative roles, attacking habeas corpus, juries, the rule of law, other traditional notions of liberty (they don’t seem interested in so-called ‘third generation rights’) and mass surveillance).

I’m painting with a broad brush here but I think the distinctions are fair. All else being equal, given the choice between a new (not New, but some unknown) Labour candidate and Tory candidate, who would you vote for? Precedent strongly suggests you’d be mad, as a friend to liberty, to vote Labour.

That isn’t the same thing as saying that human rights should be contingent on individuals carrying out their “duties” – let alone Dominic Grieve’s formulation of only handing out rights to the “deserving”.

As for “the problem with a rights-based approach is that rights impose duties on others” – I’d go along with that, but I don’t see it as a “problem.” Surely the interdependent duty we have to each other is the fundamental underpinning of a civilised society (that is a world away from any duties we might “owe” to the state)? Surely the idea that you have a duty to help out your fellow human is the basis of pretty much any ethical system you care to mention?

Therefore I certainly think we are better off with the HRA than without it but I agree with James above that it is a starting point and would like to see a Bill of Rights which gave us stronger protection in some areas.

As to the question in the heading to this post, the whole point of human rights is that we posess them purely by virtue of being human. Once you start making them conditional then they are by definition not rights.

I think it’s fair to say that a lot of people are looking at the Convention on Modern Liberty and wondering if a whole new swathe of rights are going to be demanded, that are simply going to impose a whole new batch of obligations on the rest of us, while doing nothing to halt the expansion of government and its accompanying assault on our liberties, and possibly make law enforcement even less effective.

As I pointed out before, we have our HRA rights in place, but this has done precisely nothing to prevent a steady erosion of our liberties. I would advocate a liberties-based approach to the issues, seeking to limit government, rather than to impose duties on government and/or ordinary people.

Well you have to have some understanding of natural rights, otherwise you don’t know when someone writes some other rights down, whether you are obligated to obey them or whether they are just words on a page.

You have probably seen this already, but this is what I believe natural rights are, in essence: http://www.isil.org/resources/introduction.swf

And I understand your anxieties about our unwritten constitution, (I will try and a get a hold of your book) it just so happens that it seems to have served to protect British citizens in the past more than the planned legal machinery that other states have employed. For example, it took one judicial declaration to say that slavery was illegal in this country. It took a civil war in the US, despite it being pretty blatantly against their own legal principles. Perhaps times have changed and the risks of unwritten law are greater than the written law, and we need to write it all down from now on. Or perhaps it doesn’t make all that much difference and it really depends on the quality of the judges and the attitude of the people and politicians.

Nobody is on the side of the selfish more than the Rightwing. When I see rich businessmen stop paying the best lawyers to get them off their crimes I will take you seriously, but until then your so called concern for the working man is nothing but bull.

Today’s word is “Perspective”

A lot of it stems from an arrogant pretense at sophistication. They must define themselves in opposition to the ordinary tabloid reading man. That is why they support the unpopular Human Rights legislation. They need to say things that are not immediately obvious to the man in the street. The man in the street instinctively sympathizes with the victims of crime and naturally opposes the pro-crime Human Rights Act; so, to distinguish himself from the ordinary man, the leftist has to sympathize with the evil doer, by turning him into a victim of forces which only leftists have sufficient sophistication to understand.

If we agree with innocence before proven guilty, then we cannot agree with a system that reduces rights and makes us fight to get them back.

While I have to declare an interest by admitting I had a hand in its publication, I would strongly encourage you to get a copy of Unlocking Democracy and read John Jackson’s chapter on natural justice and the rule of law. If you don’t define the principles that underpin your legal system (something which, scarily, the UK is guilty of), the judiciary will have to do it for you – a fact which should make us all uncomfortable.

Natural rights do not hark back to anywhere. They are just a theory that individuals are endowed with certain rights irrespective of the legal and social institutions around them. Chiefly, such a theory does not offer any intrinsic privilege to government institutions, and that therefore, any government has to operate by consent. There have been attempts to enact such a system in the past – the American experiment for example – that has so far failed to live up to its own values. But I think we can get closer to that ideal now, but that ambiguous ‘Human Rights’ laws are certainly limited in how far they can get us, and may in some cases be counter-productive.

I mean should 42 days detention even conceivably be rights-respecting? Should you really be able to lock people up for possessing ‘Dangerous pictures’ in any rights respecting democracy? Arrest people for not having their ID papers in order?

I’ve fixed that up for you Charlie.

“the fact that someone can commit murder only recieve a 12 yr sentence and the money made by lawyers.”

You are clearly a person of retribution and revenge. Our judicial system isn’t purely about that, and without knowing the ins and outs of the case, the suspect and the details of his conviction you cannot say decisively if 12 years is too little or too long in that individual case.

“Consequently, many hardworking and honest people feel the law is no longer on their side”

Wouldn’t it be interesting to know exactly why they feel that way? The BCS certainly sees the correlation between people that believe this and those that read tabloids. And we all know the bullshit they print, without factual basis, don’t we?

“When terrorists who have threatened this country cannot be deported due to human rights legislation , then they consider the justice, ploce and criminal system is another middle class employment racket.”

People generally don’t have a problem with the police actually.

So, to answer your first question, people read right wing papers more because people are generally “in” to scandal rather than long articles that prove their prejudices wrong (or in some cases right). People want to know why their lives are so shitty and the tabloids give them the perfect excuses to use in supposedly polite company (immigrants, welfare scroungers, paedophiles). The fact that half of what they read is plain false or spun incorrectly from statistics is irrelevant, especially as the papers never need print apologies or retractions unless they offend a couple of parents stupid enough to leave their children alone in a foreign country, to these people it is as factual as any well researched piece in the left wing papers.

Working backwards:

@25 Nick:

What are these “natural” rights of which you speak? We’ve never had them. Having skimmed through the Backlash website, I’m surprised to hear to harking back to some golden age; when was this precisely?

I’m prepared to accept that the HRA has deficiencies, but a broadly-defined exemption clause about infectuous diseases and vagrants does not undermine the whole thing. I’d be all for a British Bill of Rights which was stronger than the ECHR, but the ECHR is a pretty good starting point.

@21 sally: “This is why David Davis and his political stunt was such a crock of shit.”

Writing as someone who was actively involved in attempting to unseat Davis in 2005 and would happily see him unseated at the next election, I have to say that is a naive comment. Davis is not Cameron’s friend; he jumped before he was pushed. The current row raging within the Conservative Party about whether Cameron could bear to give Davis a job on the front bench again isn’t fake. I’m not claiming Davis is an angel by any means but the civil liberties movement had an opportunity to coopt his cause which we collectively botched.

@11 ukliberty: “James, sorry but how on earth do you have any reassurances from Labour’s legislation and voting record?!”

You’ve taken my words out of context and I make a similar point to your’s later on in the article (“…the constant undermining of the HRA that Labour are guilty of…”). And I said Labour “offer” reassurances – not that I am reassured by them.

It is a matter of record that Labour have explicitly stated that their plans for a British Bill of Rights would build on the HRA, not replace it – while the Tories want to scrap the HRA and replace it with something “other.” That may sound minor, but it is a real distinction. And the number of people on the Labour benches prepared to defend the HRA outnumber the number on the Tory benches by literally 100-1. I’m not claiming that is everything, but it is something.

Do I think Labour have a poor track record on civil liberties and human rights? Darn right I do! The point I am making however is that the alternative the Tories are offering would be far worse.

Let’s not forget that the Tories were in favour of ID cards before they were against them. What changed? Davis convinced Howard of opposing them on tactical and cost grounds. However imperfect Davis may be, there is now no-one on the Tory front bench prepared to even talk the talk on civil liberties.

The Tories being worse than Labour isn’t going to persuade me to vote for Andrew Dismore (my local MP) at the next election, but it does represent a dilemma for the left. Our only real hope is to raise public awareness about civil liberties: that’s why things like the Convention for Modern Liberty (plug) are so important.